Drake v. Astrue

Filing 17

DECISION AND ORDER Reversing and Remanding the Decision of the Commissioner. (cc: all counsel)((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANGELA DRAKE,
on behalf of S.F., a minor,
Plaintiff,
v.

Case No. 10-C-0420

MICHAEL J. ASTRUE,
Defendant.
DECISION AND ORDER REVERSING AND REMANDING
THE DECISION OF THE COMMISSIONER
Plaintiff, Angela Drake, on behalf of minor child SF, seeks judicial review of
the final decision of the Commissioner of the Social Security Administration denying her
application for supplemental security income payments. In her application, SF claimed that
mental and behavioral disorders have limited her ability to perform substantial gainful
activity since March 17, 2006. After the Commissioner denied the application initially and
on reconsideration, SF requested a hearing. Administrative Law Judge Jacob D. Jacobson
conducted the hearing on November 12, 2008, during which SF, Drake, and a medical
expert, Dr. Feinsilver, testified. The ALJ issued a decision finding SF not disabled. SF’s
request for a rehearing was denied by the Appeals Council causing the decision to become
the Commissioner’s final decision as of April 3, 2010.
In the pending appeal, SF seeks a Sentence Four remand alleging that the
ALJ failed to consider and weigh the experts’ reports in the assessment of the case as
required by 96-6p, discuss significant material evidence contrary to his opinions, reject
SF’s credibility properly contrary to SSR 96-7p, and otherwise relied upon insufficient

evidence. For the reasons set forth below, ALJ Jacobson’s decision is vacated and this
matter will be remanded for further proceedings consistent with this opinion.
STATEMENT OF FACTS
SF, who was 13 at the time of the hearing, has lived with her custodial aunt,
Angela Drake, since her mother’s death in 2002. (R. at 26, 31, 49, 68.) In 1997, SF
witnessed her father shooting her mother in the head, and many of her mental impairments
are associated with this incident. (R. at 54, 68.)
SF has struggled in school behaviorally and academically.

Despite

placement on school bound buses, SF is not in school at least twice a week. (R. at 44.)
Drake receives calls twice a week for SF’s disruptive behavior, such as failure to stay in her
seat, wanting to leave class, seeking to leave the school building, and agitation. (Id.) In
2006, it appears that SF was suspended at least three times. (R. at 178-9.) At various
times, SF left school “because some days just don’t be my days” and “some days I don’t
be feeling right... I feel like, like unhappy sometimes and just don’t feel like doing nothing,
just feel like sitting down all day, going to sleep.” (R. at 32-3.) It was estimated that SF
had missed 35 days during the semester when the hearing was conducted. (R. at 34.)
She cursed teachers (R. at 179), left the school to go to Jewel (R. at 182), was very loud
(R. at 179), was defiant (R. at 178), and was a “constant classroom disruption.” (R. at
179.) After she completed the 6th grade, she was expelled from Westwood. (R. at 47.)
At Wedgewood, SF had tantrums and threw items “around the office.” (R. at 48.) She also
had to repeat the first grade. (R. at 50.) That being said, SF tried out for the cheerleading
squad, and was in the school play. (R. at 35.)

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SF struggles academically and has an Individualized Education Plan (“IEP”)
created pursuant to the Individuals with Disabilities Education Act. (See, e.g., R. at 227,
266.) Apparently, through her various updated plans, SF has attended mainstream and
special education classes. (R. at 38.) The May 2006 IEP indicates that SF worked well
independently, but did not return homework, needed maximum support to complete her
class work, and did not complete tasks she found difficult. (R. at 231.) She was delayed
significantly in receptive and expressive language skills, impairing her ability to perform
grade level work. (Id.) SF read at a third grade level, and was at a second grade level in
math, spelling, and writing. (Id.) Her effort and motivation depended on her interest and
mood. (Id.) Finally, the May 2006 IEP noted that SF was disruptive in class, at times, and
disrespectful to peers and adults. (Id.)
SF’s February 2007 IEP was created when she was in the 5th grade. (R. at
275.)

Teachers were concerned about SF’s ability to understand and complete

assignments. (R. 277.) On the other hand, teachers were no longer concerned with SF’s
ability to communicate and SF no longer displayed behaviors that were severe, chronic,
or frequent. (R. at 281, 291.) SF’s reading was at a second grade level, her language arts
were at a second to third grade level, and her math was at a fourth grade level. (R. at 277.)
She was delayed significantly in listening comprehension, reading comprehension, and oral
expression, though this was evaluated to be the result of deficits related to remembering
and accessing information. (R. at 279.) Further testing was required to determine
proficiency in reading, math, and writing. (R. at 288.) Also, she required repeated
instructions and clarification. (Id.) Additionally, she needed a small group setting to

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facilitate assessment of her ability to read, write, and do math. (Id.) SF placed in the 2nd
percentile in reading, and 5th percentile in math. (R. at 357.)
In the first quarter of 2007/08 academic year, one of SF’s teachers noted that
“[o]verall, [Plaintiff] has the potential to be an excellent student. There are some areas that
she needs to improve in: she needs to listen and follow directions in class, work on her
reading, show respect for others, and take responsibility for her learning and her actions.”
(R. at 356.) However, in January 2008, SF was expelled from Academy of Learning and
Leadership after she refused to remain in class, or to be respectful to any adult. (R. at
359.)
Additionally, SF has experienced legal trouble. She has been issued tickets
for curfew violations, retail theft, disorderly conduct, burglary, and attempted burglary. (R.
at 42-3.) By age 10, she stole from a grocery store “on a regular basis.” (R. at 226.) The
IEP also indicated that SF had stolen from the grocery store 10-12 times in one year. (R.
at 276.) Apparently, as a result of these crimes, SF is on a 24-hour curfew with which she
complies. (R. at 50-1.)
SF has claimed that she has trouble sleeping. She testified that she awakes
every night and was unable to get back to sleep. (R. at 39.) About three times each week,
SF has nightmares, dreams that she talks to her deceased mother, and is afraid. (Id.)
SF lives with her aunt, cousins, and siblings. (R. at 36.) She gets along with
them, as well as adults outside the home. (R. at 36, 48.) SF testified that she prepares
for school without assistance. (R. at 37.) She also performs household chores including
washing dishes, cleaning the bathroom, and taking out the garbage. (R. at 37). However,
she does have tantrums during which she throws items. (R. at 48.)
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SF has had an extensive history of therapy, including psychological and
speech. In 2006, at age 10, SF began therapy at Renew Counseling Services. (R. at 219.)
The therapist noted that SF appeared traumatized by witnessing her mother’s shooting and
subsequent death. (R. at 226.) It was observed that SF’s speech pattern was blurred. (R.
at 224.) Moreover, she was depressed, and had difficulty sleeping, severe emotional
liability, severe anxiety, severe lack of energy, mild loss of interest in pleasurable activities,
and moderate crying spells. (R. at 224-5.) Further, SF exhibited severe difficulty in
concentration, memory and attention.

(Id.)

The therapist noted that SF had had

nightmares since her mother’s death and diagnosed a nightmare disorder, indicating that
SF needed support in dealing with her lack of respect for authority figures, abandonment
issues, and the trauma of her mother’s shooting and death. (R. at 226.) Finally, the
therapist reviewed SF’s theft from grocery stores. (R. at 226.)
A function report completed April 26, 2006 indicated that SF’s speech was
severely impaired due to a stutter. (R. at 127.) Though she could be understood by
people who knew her well, she could hardly ever be understood by people who did not
know her well. (Id.) SF was unable to deliver phone messages, make new friends, or get
along well with teachers. (R. at 128, 131.) She could not tie her shoes, use zippers alone,
wash her own hair, choose her own clothes, comb her hair, help around the house, do
what she was told most of the time, obey safety rules, arrive at school on time, or accept
criticism or correction. (R. at 132.) Her ability to pay attention or focus was limited. (R. at
133.) Alone, SF could not stay busy, complete homework, or complete chores. (Id.)

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A letter from the Program Director of the Boys and Girls Club confirms the
Function Report. (R. at 183.) The Director wrote of SF’s anger management issues, and
dislike of corrections or instructions. According to the Director, when people tried to
reprimand SF, she became more upset and disengaged. (Id.) On the basis of these
observations, the Director recommended counseling. (Id.)
In July 2006, psychologist Dr. Timothy Wiedel diagnosed SF with an
adjustment disorder mixed with disturbance of emotion and conduct, an expressive
language disorder with mild symptoms, extended bereavement, and continued adjustment
difficulties secondary to her mother’s death. (R. at 196.) Dr. Wiedel assessed SF’s Global
Assessment of Functioning to be a score of 60, indicating that she had mild to moderate
impairment in social and educational functioning. (Id.)
In August 2006, state agency consulting psychologist Cathy Propper
reviewed the evidence and opined that SF’s impairment or combination of impairments
were severe, but did not meet or equal the disability listings. (R. at 200.) Dr. Propper
found that SF had less than marked limitations in the SSR diagnostic domains of acquiring
and using information, and interacting and relating with others; marked limitation in caring
for herself; and no limitations in attending and completing tasks, moving about and
manipulating objects, and health and physical well-being. (R. at 202-3.) In October 2006,
Dr. Propper’s opinions were affirmed by state agency consulting psychologist Dr. Michael
Mandli. (R. at 214.)
At various times, SF has enrolled in “day hospitalization” programs. First, SF
was admitted to Rogers Memorial in October 2007 where SF initially responded well to
treatment. (R. at 301.) Treated by psychiatrist Dr. Kim, SF detailed her problems at
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school. Dr. Kim noted that SF had been disrespectful at school, walked out of classrooms,
used foul language, threw items, made verbal threats, physically fought, had mood swings,
awoke with nightmares, and reported “seeing” her deceased mother. (R. at 325.) She
made comments about wanting to die. (R. at 316.) SF’s symptoms included fighting with
peers, uncontrollable crying, dress/hygiene issues, poor attention span, and feelings of
being alone or isolated. (R. at 327) She exhibited sleep disturbance, racing thoughts, and
fears. (Id.) Dr. Kim was concerned that SF posed a moderate safety risk, and admitted
her for treatment five days per week. (R. at 329.) However, after missing 7 of 45 days,
she was dismissed. (R. at 49-50.) Diagnosis there included post traumatic stress disorder
(“PTSD”) and depression NOS.1

However, Rogers Memorial also diagnosed mood

disorder NOS. (R. at 318-9.) Rogers Memorial assigned SF a GAF score of 44, but noted
that she had received a 66 GAF score in the past year. (R. at 319.) SF’s discharge
indicated no diagnostic changes other than her GAF score of 41. (R. at 306.) Auditory
hallucinations and increasing suicidal thoughts. (R. at 315-6.) She had increasing
aggressive behavior at home and school. (R. at 306.) Moreover, SF was noted as
threatening to cut the necks of her teachers and peers, lying to her guardian, and generally
engaged in high risk behavior. (Id.)
Next, SF was admitted to the Aurora “day hospitalization program,” (R. at
368-99) which she attended for three to four before being “chased away by security staff”
after transportation brought her for treatment. (R. at 50.) Aurora also dismissed SF for
missing too many treatment sessions. (Id.) Before being dismissed, she was diagnosed

1

Not otherwise specified.

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with mood disorder NOS, disruptive behavior disorder NOS and a GAF score of 52 at
admission. (R. at 399.) On May 13, 2008, SF was discharged to return to school full-time
with a GAF of 50. (R. at 370, 395.)
Independent medical expert Dr. Thomas Feinsilver testified at her hearing.
(R. at 51-68.)

Dr. Feinsilver, who did not examine or treat SF, opined that SF’s

impairments fit into three categories, (1) PTSD, (2) attention deficit disorder (“ADD”), and
(3) disturbance of conduct or personality disorder, which was the primary cause of SF’s
disability. (R. at 52, 54.) Dr. Feinsilver acknowledged SF’s truancy and questioned the
ADD diagnosis. (R. at 54, 56.) With respect to the six functional domains of the SSR
diagnostic rubric, Dr. Feinsilver opined that SF had a marked limitation in domain two,
attending and completing tasks. (R. at 57-8.) He further opined that SF was between lessthan-marked and marked limitations in domain one, acquiring and using information. (R.
at 57.) Reviewing the domains in numerical order and after reviewing domain two, he then
stated confusingly that, “I would rate her under this domain, too, as markedly impaired.”
(R. at 57.) Finally, he opined that SF was between less than marked and marked
limitations in domain three, interacting and relating with others. (R. at 57-8.) In Dr.
Feinsilver’s opinion, SF had a less-than-marked or no limitation in the remaining domains.
(R. at 57-8.)
Next, Dr. Feinsilver opined that SF is “close” to functionally equaling Listing
112.08 because of her anti-social personality disorder, and her disregard for societal
norms, and conforming to lawful and appropriate behavior. (R. at 59.) He advised that SF’s
medical records indicate a gradual worsening of SF’s anti-social traits. (R. at 60.) Indeed,

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he testified that SF’s “horrific life experiences,” unhappiness, anxiety and PTSD were the
driving forces of her behavior. (R. at 61.)
The ALJ wrote an eleven page opinion, roughly two pages of which discussed
facts. (R. at 13-23.) He split this review of the facts into two conclusions of law. The third
conclusion of law (“Finding 3") evaluated whether SF’s impairments meet or medically
equal the listings of 12.06, 12.08, or 20 C.F.R. Part 404, Subpart P. In support of his
rejection of finding SF disabled under these listings, the ALJ referred to “some speech and
language assistance at school to deal with mild speech difficulties,” the shooting death of
SF’s mother, “some counseling in September and October 2006," PTSD and depression
NOS, some counseling in which she was discharged due to non-attendance, “prescribed
medication.” (R. at 16.) The ALJ concurred with “the medical expert” who made “some
references” to ADD and opined that SF was “only having occasional nightmares,” and
indicated that SF was having personality disorder problems including truancy, robberies,
and burglary. (Id.) Lastly, the ALJ found, that SF “does have friends at school and gets
along with her cousins.” (Id.)
The ALJ’s fourth conclusion of law (“Finding 4") evaluated whether SF’s
impairments or combinations of impairments functionally equaled the listings. (Id.) This
assessment, presented as a rejection of SF’s credibility, is summarized in one paragraph,
pieces of which are repeated throughout the opinion. (R. at 17, cf., R. at 20, 21, 22.) He
characterized the record broadly, indicating that SF “has not had a great deal of care on
a consistent or regular basis. She has been seen from time to time and prescribed
medication.” (R. at 17.) Specifically, he indicated that SF “has friends, gets along well with
teachers, and participates in school activities. She has tried out for the school play and
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cheerleading squad.” (Id.) SF gets along well with her cousins, and cares for herself. (Id.)
SF has problems “in terms of only going to school when she feels like it and getting into
various mischief when she is not in school.” (Id.) She is compliant with a 24-hour curfew.
(Id.) Therapy and medication were helpful. (Id.) She attends some “regular” [sic] classes
but also receives special education assistance.

(Id.)

Finally, the ALJ rejected the

credibility of a document indicating that SF could “do almost nothing” around the house
as inconsistent with the record. (Id.)
CONCLUSIONS OF LAW
The district court’s review is limited to determining whether the
Commissioner’s decision is supported by “substantial evidence.” 42 U.S.C. § 405(g). The
Commissioner’s findings are conclusive if supported by substantial evidence. Id. The
court reviews the entire record to determine if it supports the Commissioner’s decision.
Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992). Substantial evidence is such evidence
contained within the entire record as a reasonable mind might accept as adequate.
Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is more than a
mere scintilla, but less than a preponderance. Outlaw v. Astrue, 412 Fed. Appx. 894, 897
(7th Cir. 2011). The court may not substitute its judgment for that of the Commissioner.
Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
Though the ALJ need not discuss all of the evidence, the ALJ must consider
all relevant evidence, and may not discuss only that evidence that supports its own
recommendations. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994); Zurawski v. Halter,
245 F.3d 881, 888 (7th Cir. 2001).

On appeal, the Commissioner’s attorneys cannot

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defend the Commissioner’s decision on grounds that the Commissioner has not embraced.
Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010).
An award of benefits is appropriate only if all factual issues are resolved, and
if the resulting record supports only the conclusion that an applicant qualifies for disability
benefits. Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011). Minors may receive disability
benefits under the Social Security Act, and are provided unique requirements in
determining their disability status. 42 U.S.C. § 1382c(a)(C)(I); 20 C.F.R. § 416.906.
To determine whether a minor’s impairments render the minor disabled, the
Commissioner must evaluate six domains. If a minor has an extreme limitation in any one
of the domains, the minor is disabled. 20 C.F.R. § 416.926(a)(d). If a minor has a marked
limitation in any two of the domains, the minor is disabled. Id. The six domains 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 herself; and
(6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1).
The ALJ’s findings that SF did not have an impairment that equaled or
functionally equaled any listed impairment and that SF had less than marked limitations
are not wholly supported by the record. The ALJ found that SF had the following severe
impairments: post traumatic stress disorder and personality disorder and concurred “with
the assessments of the medical expert, as they are supported by the medical evidence in
the record.” The medical opinions in the record also included references to an expressive
language disorder, extended bereavement and adjustment difficulties, and depression. For
example, Dr. Feinsilver found posttraumatic stress disorder based on the earlier “fairly
horrific life experiences,” a question as to whether there is attention deficit disorder,
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behavioral disturbance, and conduct disorder. Dr. Weidel found an adjustment disorder
with mixed disturbance of emotion and conduct, expressive language disorder, and
extended bereavement with continuing adjustment difficulties, Dr. Propper found an
adjustment disorder with disturbance of emotions and conduct and speech and language
delays, and Dr. Kristine Kim at Rogers Memorial Hospital diagnosed posttraumatic stress
disorder and depression with a GAF of 41 to 44.
In making his findings, the ALJ did not address various experts’ opinions and
evidence in the record. Initially, Dr. Feinsilver found domain one “less than marked,” but
then reviewed domain two and stated, “I would rate her under this domain, too, as
markedly impaired.” This could easily have been a typo; indeed, the sentence would be
clear if Dr. Feinsilver had said “I would rate her under this domain two as markedly
impaired.” In any case, this was a cursory statement that did not involve any discussion
and awarding benefits is only appropriate where all factual issues are resolved.
Meanwhile, Dr. Propper and Dr. Mandli found marked limitations in “caring for yourself.”
While a combination of these opinions potentially support two marked impairments, and
therefore a finding of disability, the ALJ’s analysis with respect to acquiring and using
information, interacting and relating to others, and caring for yourself was summarized as
follows:
The claimant has less than marked limitation in these three
domains of functioning. The evidence shows the claimant has
friends and generally gets along well with teachers. She
participates in school activities and has tried out for the school
play and cheerleading squad. She also gets along well with
siblings and cousins. The claimant is generally able to
manage her own personal hygiene, feed herself and get
dressed with only occasional reminding. The claimant is in
regular education classes, but receives some special
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education assistance once each day. Her report card from the
sixth grade shows her grades are As through Cs.
(Doc. # 15-3, p. 20.)
Mindful that the ALJ was not required to discuss every piece of evidence,
there is a need to discuss all relevant evidence creating a logical bridge to the result
domain. In addition to ignoring the opinions of the state agency physicians, he never
mentions an IEP, that SF had been expelled from two different schools, the diagnoses at
Renew Counseling or Aurora, or any counseling at all. Moreover, the ALJ did not mention
the function report, the letter from the Director of the Boys and Girls Club, or the
assessment of Dr. Weidel.
Additionally, the over broad characterizations sheds little insight into the
complexities of the evidence. For example, the ALJ’s reference to SF’s “lack of interest in
going to school” does not address that SF missed 35 days of school in the semester in
which the hearing occurred. School administrators called Drake repeatedly because of
SF’s inability to comply with school rules, cursing and threatening teachers, “chronic
classroom disruption,” and at least four separate suspensions in 2006. And aside from the
comment that the “medical records document the claimant’s treatment/counseling, as
discussed above,” the ALJ did not discuss SF’s psychological impairments. The ALJ notes
that SF received “some counseling” in September and October 2006, but this does not
reflect the diagnoses for SF provided by Renew Counseling Services or the diagnoses of
the day hospitalization programs at Aurora and Rogers Memorial, including that SF was
considered to be at risk for suicide.

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As a final matter, an ALJ must provide specific reasons for a finding on
credibility, and be sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight that was given to the individual’s statements and reasons for that
weight.

SSR 96-7p.

The rejection of SF’s statements pertaining to the intensity,

persistence, and limiting effect of her symptoms is not sufficiently specific to make clear
the weight given to the statements or even which statements were rejected.
SF alleged behavioral, psychological, and speech impairments, which were not addressed
in the relevant findings. While an ALJ can weigh and reject evidence, he must be clear
that he considered the important evidence.
Overall, the cursory factual review ignores evidence contrary to the findings
and fails to properly confront and reject the credibility of SF. Thus, he has failed in his
burden to provide substantial evidence and the identified factual issues must be resolved.
Now, therefore,
IT IS ORDERED that the decision of the Commissioner is reversed and
remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration.
Dated at Milwaukee, Wisconsin, this 15th day of September, 2011.
BY THE COURT

/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
CHIEF U. S. DISTRICT JUDGE

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