FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS November 10, 2011 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
THOMAS J. RICHARDSON,
Plaintiff-Appellant, No. 11-4096 v. (D.C. No. 2:09-CV-00851-BCW) (D. Utah) MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit Judge.
Thomas J. Richardson appeals from a district court order affirming the
Commissioner’s denial of his application under 42 U.S.C. § 402(d)(1) for
Childhood Disability Benefits. Exercising jurisdiction under 28 U.S.C. § 1291
and 42 U.S.C. § 405(g), we reverse and remand for further consideration by the
administrative law judge, consistent with this order and judgment.
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I.
On November 22, 2006 (“application date”), Mr. Richardson filed two
applications for Social Security benefits: one for Childhood Disability Benefits
as a Disabled Adult Child under 42 U.S.C. § 402(d)(1) (“DAC claim”), and one
for Supplemental Security Income benefits under 42 U.S.C. § 1382 (“SSI claim”).
Under the Social Security Act, the child of an individual who is entitled to
old-age or disability insurance benefits may qualify for Childhood Disability
Benefits. See 42 U.S.C. § 402(d)(1). More specifically, and as relevant in this
case, an unmarried person over the age of eighteen is entitled to Childhood
Disability Benefits if he (1) files an application; (2) is the child of an insured
person; (3) is dependent upon the insured person; and (4) was disabled before his
twenty-second birthday. See id.; see also 20 C.F.R. § 404.350(a).
Mr. Richardson was thirty-three years old on his application date. He filed
his DAC claim as a dependent of his father, claiming that he was disabled before
the age of twenty-two. Mr. Richardson was born in 1973, and therefore he turned
twenty-two at some point in 1995. 1
After he filed his applications, Mr. Richardson was examined by
Dr. Carlisle, a consulting psychologist. Dr. Carlisle diagnosed him with
Asperger’s Disorder. The doctor ultimately opined that “[o]verall, it’s my
1 Wherever Mr. Richardson’s exact date of birth appeared in the record, it was redacted.
-2- impression that the claimant has a fairly severe disability and I doubt if he is
going to be able to obtain and hold down a job.” Aplt. App., Vol. I at 173.
Both of Mr. Richardson’s applications were initially denied. He requested
a hearing and appeared and testified before an administrative law judge (“ALJ”).
The ALJ followed the five-step sequential-evaluation process for determining
whether Mr. Richardson is disabled and, as to his DAC claim, whether he was
disabled prior to his twenty-second birthday. See generally Williams v. Bowen,
844 F.3d 748, 750-52 (10th Cir. 1988) (describing five-step sequential-evaluation
process). The ALJ found that, as of his application date, Mr. Richardson has had
the following severe impairments: developmental delays, Autism, and Asperger’s
Syndrome. The ALJ concluded at step three that he became disabled on his
application date because the severity of his impairments met the requirements of
§ 12.10 of the Listing of Impairments. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.10. The ALJ therefore granted his SSI claim. In concluding that
Mr. Richardson was disabled as of his application date, the ALJ indicated that he
agreed with Dr. Carlisle’s findings.
The ALJ denied Mr. Richardson’s DAC claim, stating there was no
evidence he was under a disability beginning before his twenty-second birthday.
The ALJ found that, before his application date, 2 Mr. Richardson had a
2 Having found that Mr. Richardson became disabled on his application date, continue...
-3- developmental delay that qualified as a severe impairment, but this impairment
did not prevent him from performing unskilled work. The ALJ concluded that
Mr. Richardson’s residual functional capacity (“RFC”) prior to his application
date allowed him to perform a full range of work at all exertional levels, but
limited to simple, repetitive tasks. Finally, using the Medical-Vocational
Guidelines (“the Grids”) as a framework, the ALJ determined that
Mr. Richardson’s non-exertional limitations had little or no effect on the
occupational base of unskilled work at all exertional levels. Therefore, the ALJ
concluded at step five that Mr. Richardson was not disabled prior to his
application date, making him ineligible for Childhood Disability Benefits as a
Disabled Adult Child.
After the Appeals Council denied review, Mr. Richardson filed an action in
district court seeking reversal of the Commissioner’s decision denying his DAC
claim. The district court affirmed the Commissioner’s decision, and
Mr. Richardson filed a timely appeal.
II.
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the
2 ...continue the ALJ’s subsequent findings addressed the entire period before that date, rather than solely the period before he turned twenty-two.
-4- correct legal standards were applied.” Watkins v. Barnhart, 350 F.3d 1297, 1299
(10th Cir. 2003). Mr. Richardson raises the following claims of error regarding
the ALJ’s determination that he was not disabled prior to his application date:
(1) the ALJ failed to consider and discuss significantly probative evidence in the
record; (2) the ALJ’s RFC determination is not supported by substantial evidence;
(3) the ALJ should have consulted a medical advisor to determine
Mr. Richardson’s disability-onset date; and (4) the ALJ erred in conclusively
applying the Grids to find him not disabled before his application date. We
reverse and remand to allow the ALJ to explain the weight he gave to a
state-agency medical consultant’s opinion regarding Mr. Richardson’s mental
RFC before he attained age twenty-two.
A.
The ALJ found that “there is inconclusive evidence to support a
determination of disability back to 1995 – when the claimant attained age 22.”
Id. Mr. Richardson argues that, in reaching this finding, the ALJ failed to
consider and discuss significantly probative evidence relevant to that time period,
as required by Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). In
Clifton we stated that
[t]he record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence. Rather, in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence
-5- he chooses not to rely upon, as well as significantly probative evidence he rejects.
Id. at 1009-10 (citation omitted). Mr. Richardson maintains it was error for the
ALJ to fail to discuss the mental RFC opinion prepared by Dr. Hedges, a
state-agency medical consultant, as well as a statement from his special education
teacher.
1.
Dr. Hedges prepared both a Psychiatric Review Technique (“PRT”) form
and a Mental Residual Functional Capacity (“MRFC”) form. Both of these forms
explicitly covered a time period beginning in 1995 and extending through the date
that the assessments were completed in March 2007. 3 In the PRT form,
Dr. Hedges opined that Mr. Richardson has the medically determinable
impairment of Asperger’s syndrome, concluding further that he has moderate
restrictions or difficulties in his activities of daily living, maintaining social
functioning, and maintaining concentration, persistence, or pace. In the MRFC
form, Dr. Hedges included fourteen more specific moderate limitations in the
categories of understanding and memory, sustained concentration and persistence,
social interaction, and adaptation. Dr. Hedges did not indicate, with respect to
3 The time period listed on the MRFC form begins in January 1995, but the exact date during that month was redacted. The month and day in 1995 were similarly redacted on the PRT form. But the parties do not dispute that Dr. Hedges’ forms purported to provide an assessment of Mr. Richardson’s condition prior to his twenty-second birthday.
-6- any of these categories, that Mr. Richardson’s limitations were not ratable based
on the available evidence. The doctor ultimately concluded, regarding
Mr. Richardson’s RFC, that “[a]lthough there is a relative paucity of information
about this claimant[], the available findings suggest that he is mentally capable of
simple, low-stress repetitive work.” Aplt. App., Vol. I at 194.
The Commissioner initially asserts that the ALJ’s RFC findings were
largely consistent with, although marginally more restrictive than, Dr. Hedges’
RFC findings. The Commissioner then proceeds to argue that it was reasonable
for the ALJ not to adopt Dr. Hedges’ opinion wholesale because it was based on a
medical exam more than a decade after Mr. Richardson turned twenty-two. The
Commissioner maintains further that Dr. Hedges’ inclusion of a low-stress work
limitation in Mr. Richardson’s RFC was insufficiently supported by the record.
The Commissioner concludes: “Although the ALJ found the opinion to be
partially corroborated by other evidence, it was reasonable for him not to adopt
the uncorroborated portions.” Aplee. Br. at 21.
The problem is that the ALJ made no such findings. The ALJ briefly
discussed Dr. Hedges’ PRT form, noting the doctor’s acknowledgment that
Mr. Richardson has an autistic and/or other developmental-delay disorders, and
reviewing the moderate limitations the doctor noted in that form. But the ALJ did
not mention Dr. Hedges’ RFC opinion or his additional, low-stress-work
limitation, much less evaluate whether it was supported by the record.
-7- Mr. Richardson maintains that the Commissioner is engaging in post hoc
reasoning, and we agree. See Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir.
2007) (rejecting government’s post hoc attempt to support ALJ’s RFC findings
with reasoning ALJ did not articulate). We remanded in Haga “because the ALJ
failed to explain why he rejected some of [a doctor’s] restrictions while seemingly
adopting others.” Id. at 1207. Here the ALJ never stated that he rejected Dr.
Hedges’ opinion regarding Mr. Richardson’s condition and limitations prior to his
twenty-second birthday. Indeed, it is not clear whether the ALJ accepted some,
but not all, of Dr. Hedges’ limitations, or entirely failed to consider the doctor’s
RFC opinion with respect to that time period. “[T]his court may not create or
adopt post-hoc rationalizations to support the ALJ’s decision that are not apparent
from the ALJ’s decision itself.” Id. at 1207-08.
2.
The Commissioner argues that a remand is not necessary because any error
resulting from the ALJ’s failure to include a limitation to low-stress work in
Mr. Richardson’s RFC was harmless. The Commissioner maintains that, even
with that additional restriction, Mr. Richardson would not have met the standards
for disability. In support of this contention, the Commissioner points to a
Disability Determination and Transmittal form finding Mr. Richardson not
disabled before age twenty-two, which listed Dr. Hedges as the physician or
medical specialist. See Aplt. App., Vol. I at 44. The Commissioner contends this
-8- document shows that Dr. Hedges, working with a disability examiner, determined
that even with a limitation to low-stress work there would have been jobs
available that Mr. Richardson could perform. 4
We are not persuaded. The Commissioner bears the burden at step five of
the sequential-evaluation process to establish that “the claimant has the [RFC] to
perform other work in the national economy in view of his age, education, and
work experience.” Williams, 844 F.2d at 751 (quotation omitted). While there is
no dispute that Mr. Richardson has no exertional limitations, the ALJ made no
finding whether a non-exertional limitation to low-stress work, in addition to the
limitations to simple and repetitive work, would “significantly limit his ability to
perform the full range of work in a particular RFC category on a sustained basis.”
Id. at 752 (quotation omitted). “[W]e are not in a position to draw factual
conclusions on behalf of the ALJ.” Allen v. Barnhart, 357 F.3d 1140, 1144
(10th Cir. 2004) (quotation omitted). Nor is there evidence in the record
conclusively establishing the existence of jobs in the national economy that
Mr. Richardson could perform despite an additional limitation to low-stress work,
such that “we could confidently say that no reasonable administrative fact finder,
4 The Commissioner fails to note that the disability examiner’s contemporary assessment of the jobs available to Mr. Richardson was based inexplicably only on a restriction against working at heights. See Aplt. App., Vol. I at 46.
-9- following the correct analysis, could have resolved the factual matter in any other
way.” Id. at 1145.
We therefore remand to allow the ALJ to perform a proper evaluation of
Dr. Hedges’ RFC opinion. See Haga, 482 F.3d at 1208; see also 20 C.F.R.
§ 404.1527(f)(2)(i) & (ii) (stating ALJ must consider findings and other opinions
of state-agency psychologists as opinion evidence and, where no treating source
opinion is given controlling weight, must explain the weight given such opinion).
Mr. Richardson argues that the ALJ should have discussed not only Dr. Hedges’
opinion that he was limited to low-stress work, but also the fourteen more specific
moderate restrictions the doctor listed in the MRFC form. The Commissioner
responds that all of the moderate restrictions detailed in that form were
encompassed in Dr. Hedges’ ultimate RFC opinion limiting Mr. Richardson to
simple, low-stress, repetitive work. Mr. Richardson disagrees, citing as an
example the moderate limitation related to social functioning. In light of our
remand, the ALJ should determine in the first instance the significance of
Dr. Hedges’ fourteen moderate limitations vis-à-vis his conclusion that
Mr. Richardson could perform simple, low-stress, repetitive work.
3.
Mr. Richardson argues that the ALJ was also required to discuss a
statement submitted by his special-education teacher, Roberta Suttlemyre. She
stated generally that Mr. Richardson “has been challenged from birth by several
-10- learning problems, both educational and social.” Aplt. App., Vol. I at 155. She
said that, while she “struggled to help [him] with every aspect of his schoolwork
during his junior high and high school years,” she did not succeed in getting him
to function at a fifth-grade level. Id. She noted his difficulties in concentrating
and retaining information. Id. Ms. Suttlemyre also indicated that she had
observed Mr. Richardson both in school and at church, and she opined that his
ability to interact with others was very limited, and he was only comfortable with
his own family. She felt that, if Mr. Richardson were a student today, current
evaluation procedures would assess him as having a mild autistic/Asperger’s type
syndrome. She stated that he is at least “mildly retarded” with “a severe lack of
social skills.” Id.
Mr. Richardson points out that evidence from a teacher may be used to
show the severity of a claimant’s impairments and how they effect his ability to
function. See 20 C.F.R. § 404.1513(d)(2); see also Social Security Ruling
(“SSR”) 06-03p, 2006 WL 2329939, at *2 (stating information from non-medical
sources, such as teachers, “may provide insight into the severity of the
impairment(s) and how it affects the individual’s ability to function”). Therefore,
Mr. Richardson argues that Ms. Suttlemyre’s statement is significantly probative
evidence of the effects of his impairment on his ability to function, in light of
Dr. Hedges’ opinion stating that he had the medically determinable impairment of
Asperger’s syndrome prior to his twenty-second birthday.
-11- The Commissioner responds that an ALJ is not required to discuss every
aspect of the evidence, and the ALJ’s discussion of the evidence in this case,
following his statement that he had carefully considered the entire record, was
legally sufficient. See Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)
(noting general practice of taking “lower tribunal at its word when it declares that
it has considered a matter”). The Commissioner argues further that the ALJ was
clearly aware of Ms. Suttlemyre’s statement, noting that he acknowledged
receiving it on the record during a hearing. See Aplt. App., Vol. I at 41. Finally,
the Commissioner contends that the teacher’s statement was cumulative of the
other school-related evidence in the record, which showed only that
Mr. Richardson had some learning difficulties in school, not that he had an
impairment that made him unable to engage in substantial gainful activity.
We agree with the Commissioner that it is clear from the record that the
ALJ was aware of Ms. Suttlemyre’s statement. See Clifton, 79 F.3d at 1009
(stating record must demonstrate ALJ considered all evidence). This case is also
distinguishable from Clifton, in which the ALJ’s “bare conclusion [was] beyond
meaningful judicial review.” Id. Therefore, based on the ALJ’s far more
extensive reasoning in this case, we would not order a remand solely for the ALJ
to expressly discuss Ms. Suttlemyre’s statement. See Wall v. Astrue, 561 F.3d
1048, 1069 (10th Cir. 2009). On the other hand, because we have already
determined that a remand is necessary to allow the ALJ to properly evaluate
-12- Dr. Hedges’ RFC opinion, we note that, contrary to the Commissioner’s assertion,
Ms. Suttlemyre’s statement does not appear to be entirely cumulative of the other
evidence related to Mr. Richardson’s condition before age twenty-two. While she
did describe his learning difficulties, she also addressed his problems with social
interaction. 5 Ultimately, we leave it to the ALJ, in the context of the remand we
have ordered, to determine the extent to which a discussion of Ms. Suttlemyre’s
statement is appropriate.
B.
In light of our remand to allow the ALJ to evaluate and weigh Dr. Hedges’
RFC opinion, we address only briefly Mr. Richardson’s remaining claims on
appeal. He contends the ALJ should have consulted a medical advisor to
determine the onset date of his disability. The Commissioner argues it is difficult
to see how a medical advisor could give an opinion with respect to disability
onset with a legitimate medical basis when the only medical evidence postdates
Mr. Richardson’s twenty-second birthday by a dozen years. Citing SSR 83-20,
1983 WL 31249, at *3, Mr. Richardson counters that consultation of a medical
advisor is appropriate here because it is possible to infer, based on the record, that
his disability began before his twenty-second birthday. Dr. Hedges purported to
5 We note, as well, that prior to issuing his decision, the ALJ observed that the Ms. Suttlemyre’s experience with Mr. Richardson was much like Dr. Carlisle’s experience with him. See Aplt. App., Vol. I at 41.
-13- do just that. And in evaluating and weighing Dr. Hedges’ opinion on remand, the
ALJ is tasked with determining the extent to which it is supported by the relevant
evidence. See 20 C.F.R. § 404.1527(d)(3) & (f)(2)(ii).
Finally, Mr. Richardson concedes in his reply brief that the ALJ did not use
the Grids conclusively to find him not disabled. But he asserts that, in light of his
numerous, moderate mental limitations as set forth in Dr. Hedges’ RFC opinion, it
was error for the ALJ not to take testimony from a vocational expert (VE) in
order to identify the jobs available to him. On remand, after evaluating
Dr. Hedges’ opinion, the ALJ will need to determine whether VE testimony is
appropriate based upon Mr. Richardson’s resulting RFC.
III.
The judgment of the district court is REVERSED. We REMAND this case
to the district court with instructions to REMAND to the Commissioner for
further proceedings consistent with this order and judgment.
Entered for the Court
David M. Ebel Circuit Judge
-14-