FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 30, 2014 _________________________________ Elisabeth A. Shumaker Clerk of Court DAWN KNIGHT, on behalf of P.K., a minor,
Plaintiff - Appellant,
v. No. 13-2175 (D.C. No. 1:12-CV-00382-JB-LFG) CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
Defendant - Appellee. _________________________________
ORDER _________________________________
Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge. _________________________________
This matter is before the court on appellant’s Unopposed Motion to Publish. Upon
consideration, the motion to publish is granted. The court’s June 24, 2014 decision has
been reformatted as a published opinion and is attached to this order. The clerk is
directed to file the published opinion nunc pro tunc to the original filing date.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 24, 2014
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
DAWN KNIGHT, on behalf of P.K., a minor,
v. No. 13-2175
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 1:12-CV-00382-JB-LFG)
Michael D. Armstrong and Francesca J. MacDowell, Michael D. Armstrong Attorney at Law, Albuquerque, New Mexico, for Plaintiff-Appellant.
Brock C. Cima, Special Assistant United States Attorney, Steven C. Yarbrough, Acting United States Attorney, Manuel Lucero, Assistant United States Attorney and Michael McGaughran, Regional Chief Counsel, Region VI, Social Security Administration, Office of the General Counsel, Region VI, Dallas, Texas, for Defendant-Appellee.
Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.
Dawn Knight, on behalf of her daughter, P.K., appeals from a district court
order affirming the Commissioner’s denial of P.K.’s application for Supplemental Security Income benefits (“SSIB”). Exercising jurisdiction under 28 U.S.C. § 1291
and 42 U.S.C. § 405(g),1 we reverse and remand for further proceedings.
I
Knight sought SSIB for P.K. in April 2007, when P.K. was nine years old,
claiming that her daughter suffered from a learning disability, hearing loss, attention
deficit hyperactivity disorder (“ADHD”), and “temper.”
In July 2007, Dr. David LaCourt evaluated P.K. for the New Mexico Disability
Determination Services Unit. He noted that P.K. was taking Dextroamphetamine for
her ADHD and “had written what was taken as a self-harm note while she was at a
doctor visit recently.”2 P.K. took a reading test and scored at the second-grade level,
despite being in the fourth grade at the time.
P.K.’s third and fourth grade teachers filled out functional-assessment
questionnaires indicating that P.K. had obvious or serious problems acquiring and
using information. The fourth grade teacher additionally reported that she had “to
1 Although Knight filed her notice of appeal outside the sixty-day window to appeal, see Fed. R. App. P. 4(a)(1)(B), the district court subsequently entered an order extending the time to appeal, see id. 4(a)(5)(A)(ii). Thus, we have appellate jurisdiction. See Hinton v. City of Elwood, 997 F.2d 774, 778 (10th Cir. 1993) (“Rule 4(a)(5) permits the district court’s approval of a timely motion to extend to validate a prior notice of appeal.”). 2 The record in this case contains a picture of P.K. with a handwritten note at the bottom, reading: “I hate myself and I want to die.” It is unclear if this is the self- harm note referenced by Dr. LaCourt. We also note that P.K.’s medication has included Zoloft (an antidepressant drug) and Seroquel (an antipsychotic drug) in addition to Dextroamphetamine (a psychostimulant drug).
-2- implement behavior modification strategies” for P.K. because P.K. had been cursing
during recess and spreading “malicious gossip.”
In September 2009, P.K’s fifth-grade teacher completed the same
questionnaire, finding few obvious or serious problems when it came to P.K.’s
abilities to acquire and use information. She did note, however, that P.K. “is very
aggressive on the playground and uses bad/inappropriate language outside the
classroom.”
Dr. E.B. Hall managed P.K.’s medication regimen from 2007 through 2010.
His progress notes for that period reveal instances in which P.K. threatened a sibling
with a knife, hit another child in the face, was “hearing voices,” harmed herself,
experienced mood swings, and failed to take her medication. But Dr. Hall also made
several notations indicating that P.K. was getting good grades at school. According
to Dr. Hall, P.K. was extremely impaired in the areas of attending and completing
tasks and interacting and relating with others. She was markedly impaired regarding
her overall health and physical well-being, acquiring and using information, and
caring for herself.
In March 2010, when P.K. was in the sixth grade, she was examined at
Hogares, Inc., a mental-health evaluation and treatment center for children. There,
P.K. told the therapist that “she hears people calling her name, thinks that other
people are talking about her when they are not, and often talks about killing herself.”
P.K. also said that “she often feels like nothing is ever going to change or get better
-3- and it is not worth getting out of bed.” Knight reported to the Hogares therapist that
“she [has] found notes stating [that] [P.K.] wanted to kill herself”; that P.K.
“scratches out her face in pictures”; that P.K. “does not take her medication without
supervision”; and that it is difficult to take P.K. out in public because “she will lay
herself down and throw a fit like a two year old.”
The therapist diagnosed P.K. with ADHD, oppositional defiant disorder,
adjustment disorder with anxiety, and bipolar disorder. The therapist noted that P.K.
was currently “doing poorly in school,” apparently due to her ADHD.
In June 2010, Knight and P.K. appeared before an administrative law judge
(“ALJ”). Knight testified that P.K. fights with the other children in the family; “goes
after the [other] kids with a knife”; “likes to try to kill herself”; has broken windows
and punched holes in the walls where they’ve lived; “throw[s] a fit” when asked to
help around the house or when they go out in public; and resists taking her
medications. Knight also testified that while P.K. was in sixth grade, the school
called at least once a week about problems with P.K. fighting, “focusing, staying on
task, and not interrupting the classroom.” According to Knight, P.K. had no
long-term childhood friends and had only recently made a friend.
P.K. testified that she argues with her siblings, has threatened her brother with
scissors, has temper tantrums, and has to be reminded to take her medications, brush
her teeth, and take a shower. Regarding her medications, P.K. stated that
“[s]ometimes [she] get[s] better, but” then “get[s] used to the pills” and they do not
-4- help her. She also believed that she did well in sixth grade, but admitted that she had
trouble with reading.
The ALJ found that P.K. suffered from hearing loss, a reading disorder, and
ADHD, but he concluded that none of her impairments, either singularly or in
combination, medically or functionally equaled an impairment listed in the
regulations.3 In doing so, the ALJ found that P.K’s health problems could “produce
the alleged symptoms,” but that “statements concerning the intensity, persistence and
limiting effects of [P.K.’s] symptoms are credible [only] to the extent they are
consistent with finding” her not disabled. He rejected the diagnoses offered by the
Hogares therapist, stating that they were not from an acceptable medical source. He
also rejected Dr. Hall’s opinions, explaining that Dr. Hall “only provides medication
management and not therapy”; his opinions “evidently rel[y] heavily on subjective
reports concerning areas outside of the scope of his observation”; and his opinions
“contrast[ ] sharply with the other evidence of record.”
3 The ALJ correctly noted that P.K. was a school-age child when the SSIB application was filed, see 20 C.F.R. § 416.926a(g)(2)(iv) (ages six to twelve), but incorrectly reported that she remained in that age bracket at the time of his decision, despite the fact that she had turned twelve several months earlier and was thus an adolescent, see id. § 416.926a(g)(2)(v) (ages twelve to eighteen). Knight asserts that the ALJ’s mistake “was additional error,” but she does not explain how the ALJ’s mistake had any bearing on this case. Thus, we decline to reach this assertion. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (“[P]erfunctory complaints fail to frame and develop an issue sufficient to invoke appellate review.”).
-5- Knight sought review from the Appeals Council, submitting additional therapy
notes from Hogares.4 Those notes state that P.K. inconsistently takes her medication
and that one of the goals of therapy was to “stop [P.K. from] talking about hurting
herself and others.” Additionally, Knight had reported to the therapist that the family
was “being kicked out of their current living situation because [P.K.] broke a window
and punched a hole in the wall.” The Appeals Council denied review.
Knight then petitioned the district court for review. A magistrate judge
recommended denying the petition. The district court adopted the recommendation
and dismissed Knight’s petition. This appeal followed.
II
Our review is limited to determining whether the Commissioner applied the
correct legal standards and whether the agency’s factual findings are supported by
substantial evidence. See Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000).
Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). A decision is not based on substantial
evidence “if it is overwhelmed by other evidence in the record.” Wall v. Astrue,
561 F.3d 1048, 1052 (10th Cir. 2009) (quotation omitted). In conducting our review,
4 “We note that any new evidence submitted to the Appeals Council on review becomes part of the administrative record to be considered when evaluating the Secretary’s decision for substantial evidence.” Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006) (quotation omitted).
-6- “[w]e may neither reweigh the evidence nor substitute our judgment for that of the
agency.” Barnett, 231 F.3d at 689 (quotation omitted).
Under the Personal Responsibility and Work Opportunity Reconciliation Act
(“PRAWOR”), 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). If the child is not engaged in substantial gainful
activity and has a severe impairment, the child meets the PRAWOR definition if his
or her impairment is medically or functionally equivalent in severity to any in the
Listings of Impairments contained in 20 CFR pt. 404, subpt. P, App. 1. See
20 C.F.R. § 416.924(a).
The ALJ found that P.K. did not have an impairment that medically equaled a
listed impairment, and then assessed functional equivalency. To find an impairment
functionally equivalent to one in the list, an ALJ must analyze the impairment’s
severity in six age-appropriate domains: (1) acquiring and using information;
(2) attending and completing tasks; (3) interacting and relating with others;
(4) moving about and manipulating objects; (5) caring for oneself; and (6) health and
physical well-being. Id. § 416.926a(b)(1). The ALJ must find an extreme limitation
in one domain or a marked limitation in two domains to satisfy functional
equivalency. Id. § 416.926a(d). Finally, the ALJ must consider “[t]he interactive
-7- and cumulative effects of an impairment or multiple impairments.”
Id. § 416.926a(c).
On appeal, Knight argues that the ALJ improperly discounted her credibility,
Dr. Hall’s opinions, and the functional equivalency of P.K.’s impairments.
III
Knight asserts that the ALJ’s credibility determination was flawed. We agree.
In determining whether a child is disabled, the agency will accept a parent’s
statement of a child’s symptoms if the child is unable to adequately describe them.
20 C.F.R. § 416.928(a). “In such a case, the ALJ must make specific findings
concerning the credibility of the parent’s testimony, just as he would if the child were
testifying.” Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir.
2001).
The ALJ discussed little of the hearing testimony and mentioned credibility
only generically, commenting that “statements concerning the intensity, persistence
and limiting effects of [P.K.’s] symptoms are credible to the extent they are
consistent with finding” P.K. not disabled. It is unclear from this statement whether
the ALJ was referring to the credibility of Knight, P.K., or both. The agency argues
that the ALJ was “clearly address[ing]” Knight’s credibility because she “completed
the paperwork accompanying P.K.’s claim” and because “Knight provided the most
substantive testimony.” In the absence of the required “specific findings,” we fail to
-8- see how either Knight’s completion of paperwork or the length of her testimony has
any bearing on whose testimony the ALJ found not credible.
Moreover, “findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the guise of findings.”
Raymond v. Astrue, 621 F.3d 1269, 1273 (10th Cir. 2009) (quotation omitted). We
are left to guess what evidence, if any, belies either Knight’s or P.K.’s testimony.
The ALJ simply offered a boilerplate credibility assertion without any reference to
the evidence. The agency does not contend that the ALJ’s error is harmless, and we
will not fashion a party’s arguments. See Ingram v. Faruque, 728 F.3d 1239, 1251
n.6 (10th Cir. 2013). In the absence of credibility findings, we reverse and remand
for a proper credibility determination.
IV
A
Knight challenges the ALJ’s determination that P.K. has only a marked
limitation in interacting and relating with others. She contends the evidence shows
an extreme limitation, which would, by itself, compel a finding of disability.
See 20 C.F.R. § 416.926a(d). Knight argues that “[t]he ALJ improperly diminished
the importance of Dr. Hall’s opinion,” which characterized P.K.’s limitation as
“extreme.”
The difference in degree between a marked limitation and an extreme one
depends on whether the impairment “seriously” interferes with the child’s ability to
-9- independently initiate, sustain, or complete activities (a marked impairment), or
whether the impairment “very seriously” interferes with that ability (an extreme
impairment). See id. § 416.926a(e)(2) & (3). Our role is limited to determining
whether substantial evidence supports the ALJ’s decision; we do not reweigh the
evidence. Nonetheless, we cannot tell whether the required quantum of evidence is
present because the ALJ discounted Dr. Hall’s opinion without sufficient
explanation.
A treating physician’s opinion must be given controlling weight if it “is
supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in the record.” Hamlin v.
Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). When a treating physician’s opinion
is not given controlling weight, the ALJ must explain what weight, if any, was
assigned to the opinion “using all of the factors provided in 20 C.F.R. §§ 404.1527
and 416.927.”5 Watkins, 350 F.3d at 1300 (quotation omitted). Specifically, “the
5 The six factors are: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician’s opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ’s attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quotation omitted).
- 10 - ALJ must give good reasons in the notice of determination or decision for the weight
he ultimately assigns the opinion,” and if he “rejects the opinion completely, he must
then give specific, legitimate reasons for doing so.” Id. at 1301 (quotations and
alteration omitted).
In this case, the ALJ found that Dr. Hall’s opinions were “less persuasive” for
three reasons. First, the ALJ observed that Dr. Hall “evidently relie[d] heavily on
subjective reports.” Although subjective reports do not constitute “medically
acceptable clinical and laboratory diagnostic techniques” and can support giving a
treating physician’s opinion less than controlling weight, see Langley v. Barnhart,
373 F.3d 1116, 1120 (10th Cir. 2004), Knight’s subjective reports concerning P.K.’s
troubling behavior issues are consistent and pervasive throughout the record. P.K.
has difficulty making friends, is “very aggressive” and spreads “malicious gossip” on
the school playground, and not only fights with her siblings, but apparently has
wielded a knife while doing so. The ALJ did not expressly reject any of these
reported behaviors or discuss how they failed to support Dr. Hall’s finding that P.K.
is extremely impaired when it comes to interacting and relating with others.
The ALJ’s second reason for discounting Dr. Hall’s opinions was that he “only
provide[d] medication management and not therapy.” But the ALJ failed to indicate
how Dr. Hall’s opinion was compromised by not providing therapy. Dr. Hall, a
psychiatrist, treated P.K. for three years, managing P.K.’s intake of multiple potent
psychostimulant, antipsychotic, and antidepressant medications. This constitutes a
- 11 - valid treatment relationship with a specialist, and the ALJ should have provided
further explanation as to its effect on the weight of Dr. Hall’s opinion.
Finally, the ALJ discounted Dr. Hall’s opinions because they “contrast[ed]
sharply with the other evidence.” We cannot discern from the ALJ’s decision what
that evidence is in the context of P.K.’s ability to interact and relate with others. The
ALJ takes issue with Dr. Hall’s opinion because it “does not reconcile with the
consistent reports of [P.K.] making good grades in school” and “complet[ing] her
homework.” Those reports, however, have little to no bearing on a child’s ability to
interact and relate with others. And other evidence the ALJ cited actually supports
Dr. Hall’s opinion for this domain: The ALJ noted that P.K.’s “behavior is her most
significant problem,” as demonstrated by her aggressive play, fighting with siblings,
and “anger outburst[s].”
Because the ALJ’s decision is deficient in its treatment of Dr. Hall’s opinion
about the severity of P.K.’s limitations in interacting with and relating to others, we
reverse and remand for a proper analysis.
B
Knight challenges the ALJ’s determination that P.K. has less than a marked
limitation in the domain of caring for herself. This domain focuses on the child’s
“personal needs, health and safety.” 20 C.F.R. § 416.926a(k)(1)(i). It requires that
the child use age-appropriate strategies “to identify and regulate [her] feelings,
thoughts, urges, and intentions,” id. § 416.926a(k)(1)(iii), and to respond to
- 12 - “circumstances in safe and appropriate ways, making decisions that do not endanger
[herself],” id. § 416.926a(k)(1)(iv). The regulations specifically provide that
“suicidal thoughts or actions . . . or refusal to take . . . medication” exemplify a
child’s limited functioning in caring for herself. Id. § 416.926a(k)(3)(iv).
There is substantial evidence in the record that P.K. has suicidal thoughts and
inconsistently takes her medication. Nevertheless, in the caring-for-herself domain,
the ALJ failed to mention P.K.’s medication compliance and stated only that her
suicidal ideation was “being addressed with therapy.” The fact that her suicidal
ideation is “being addressed” says nothing about the severity of P.K.’s impairment in
this domain. It seems obvious that the therapy’s progress and success are key to
determining whether P.K. is extremely impaired, markedly impaired, or less than
markedly impaired. But the ALJ apparently assumed that the mere fact of therapy
resolved the issue of suicidal ideation.
Moreover, to support his statement that P.K.’s suicidal ideation is “being
addressed in therapy,” the ALJ cited teacher questionnaires and the Comprehensive
Assessment completed by the Hogares therapist in March 2010. But the teachers’
questionnaires are silent about therapy for suicidal ideation, and the ALJ indicated
elsewhere in his decision that the Hogares assessment was not a record of therapy.
In short, the ALJ’s conclusion that P.K. is less than markedly impaired in
caring for herself is devoid of support. Remand is necessary to determine the
severity of P.K’s impairment in this domain.
- 13 - C
Knight also argues that the record does not contain substantial evidence for the
ALJ’s findings that P.K. has less than a marked impairment in three of the remaining
domains: acquiring and using information; attending and completing tasks; and
health and well-being. We do not need to determine whether the ALJ’s findings in
these domains are supported by substantial evidence or “overwhelmed by other
evidence in the record.” Wall, 561 F.3d at 1052 (quotation omitted). On remand, the
ALJ will be required to perform a proper credibility determination of the hearing
testimony; revisit the evidence regarding P.K.’s abilities to interact with others and to
care for herself; and reassess and identify the weight assigned to Dr. Hall’s opinions.
And under the agency’s “whole child approach,” the ALJ must consider “the
interactive and cumulative effects of the child’s impairment(s), including any
impairments that are not ‘severe.’” SSR 09–1p, Title XVI: Determining Childhood
Disability Under the Functional Equivalence Rule–The “Whole Child” Approach,
2009 WL 396031, at *3 (S.S.A. Feb. 17, 2009); see also 20 C.F.R. § 416.926a(c).
Thus, on remand, the ALJ should reevaluate P.K.’s functioning throughout all
domains.
- 14 - V
The judgment of the district court is REVERSED. We REMAND the case to
the district court with directions to remand the matter, in turn, to the agency for
further proceedings consistent with this decision.
Carlos F. Lucero Circuit Judge
- 15 -