F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS June 28, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
M ELISSA SIM IEN, M other and Next Friend to Jannai Simien, a minor child,
Plaintiff-Appellant, No. 06-5153 v. (D.C. No. 05-CV-15-FHM ) (N.D. Okla.) M ICH AEL J. ASTRU E, * Commissioner, Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.
M elissa Simien seeks judicial review of the Commissioner’s determination
that her minor child, Jannai Simien, does not qualify for Supplemental Security
* Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for Jo Anne B. Barnhart as appellee in this action. ** 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Income (SSI) disability. W e have jurisdiction under 42 U.S.C. § 405(g) and
28 U.S.C. § 1291, and we reverse and remand for further proceedings.
Jannai was awarded SSI benefits as of M arch 1, 1995. Congress amended
the statutory standards for children seeking SSI benefits in 1996, and the
Commissioner found that under the new standards Jannai’s limitations no longer
met the definition of disability for children. After numerous delays, an
administrative law judge (ALJ) held a hearing on July 1, 2004. He determined
that Jannai did not have impairments that functionally equaled the listings under
20 C.F.R. § 416.926a. See Briggs ex rel. Briggs v. M assanari, 248 F.3d 1235,
1237 n.1 (10th Cir. 2001) (describing functional equivalency). Under that
section, an impairment “must result in ‘marked’ limitations in two domains of
functioning or an ‘extreme’ limitation in one domain.” 20 C.F.R. § 416.926a(a).
“These domains are broad areas of functioning intended to capture all of what a
child can or cannot do.” Id. § 416.926a(b)(1). They include: “(i) “Acquiring and
using information; (ii) Attending and completing tasks; (iii) Interacting and
relating with others; (iv) M oving about and manipulating objects; (v) Caring for
yourself; and, (vi) Health and physical well-being.” Id. The ALJ found that
Jannai had marked limitations in interacting and relating with others, less than
marked limitations in attending and completing tasks, and no limitations in the
other four domains. He concluded that Jannai was no longer under a disability at
-2- any time after July 1, 1997. The Appeals Council denied review and the district
court affirmed the Commissioner’s decision.
W e review the district court’s decision de novo to determine whether the
agency’s decision is free of legal error and supported by substantial evidence.
See Briggs, 248 F.3d at 1237. M rs. Simien raises two issues on appeal: (1) that
the ALJ failed to consider all of the evidence; and (2) that the ALJ failed to
adequately develop the record and provide sufficient assistance to Jannai, who
was not represented by counsel. She first argues that the ALJ ignored the
evidence of Jannai’s diagnoses other than attention deficit hyperactivity disorder
(“ADHD”). 1 She points out that he was also diagnosed with oppositional defiant
disorder (“ODD”), see App., vol. 1 at 192; impulse control disorder, id. at 194,
200; and intermittent explosive disorder, see id. Jannai’s most recent medical
records also include provisional diagnoses of “Bipolar mixed, psychotic features”
and ODD, see id., vol. 2 at 331, and final diagnoses of mood disorder and conduct
disorder, see id. at 332.
1 The Commissioner argues that M rs. Simien waived this argument by failing to present it to the district court. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994). “How ever, we retain discretion to consider issues for the first time on appeal based on the facts of the individual case.” Ross v. U.S. M arshal for E. Dist. of Okla., 168 F.3d 1190, 1195 n.5 (10th Cir. 1999). W e note that M rs. Simien first raised the issue of Jannai’s bipolar diagnosis in her request for review by the Appeals Council. See App., vol. 1 at 7. M oreover, the district court acknow ledged that Jannai alleged disability based on both ADHD and OD D , and that he had been diagnosed as being bipolar. See id., vol. 2 at 423. W hether the ALJ adequately considered Jannai’s other diagnoses is a question of law, and we exercise our discretion to consider it. See Ross, 168 F.3d at 1195 n.5.
-3- The ALJ referenced the Commissioner’s previous determination of
disability based on Jannai’s diagnoses of ADHD and ODD, as well as evidence of
both of those disorders in 1995, prior to the Commissioner’s redetermination. See
id., vol. 1 at 11, 12. The Commissioner argues that these references to ODD, in
conjunction with the ALJ’s finding that Jannai had marked limitations in the
domain of interacting and relating with others, demonstrate that he adequately
considered all of Jannai’s various diagnoses. Although the ALJ must consider all
the evidence, he is not required to discuss every piece of evidence. See Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But “the A LJ . . . must discuss
the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.” Id. at 1010. Jannai’s other diagnoses qualify as
significantly probative evidence because the ALJ must assess the combined effect
of all of a claimant’s medically determinable impairments. See Salazar v.
Barnhart, 468 F.3d 615, 621 (10th Cir. 2006) (reversing where ALJ failed to
consider claimant’s diagnosis of borderline personality disorder). Here, the ALJ
failed to even mention several of Jannai’s diagnoses. Therefore, we agree with
M rs. Simien that the record does not demonstrate that the ALJ considered all of
the evidence in this case. See Clifton, 79 F.3d at 1009.
M rs. Simien also contends the ALJ ignored the evidence of Jannai’s Global
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS June 28, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
M ELISSA SIM IEN, M other and Next Friend to Jannai Simien, a minor child,
Plaintiff-Appellant, No. 06-5153 v. (D.C. No. 05-CV-15-FHM ) (N.D. Okla.) M ICH AEL J. ASTRU E, * Commissioner, Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.
M elissa Simien seeks judicial review of the Commissioner’s determination
that her minor child, Jannai Simien, does not qualify for Supplemental Security
* Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for Jo Anne B. Barnhart as appellee in this action. ** 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. Income (SSI) disability. W e have jurisdiction under 42 U.S.C. § 405(g) and
28 U.S.C. § 1291, and we reverse and remand for further proceedings.
Jannai was awarded SSI benefits as of M arch 1, 1995. Congress amended
the statutory standards for children seeking SSI benefits in 1996, and the
Commissioner found that under the new standards Jannai’s limitations no longer
met the definition of disability for children. After numerous delays, an
administrative law judge (ALJ) held a hearing on July 1, 2004. He determined
that Jannai did not have impairments that functionally equaled the listings under
20 C.F.R. § 416.926a. See Briggs ex rel. Briggs v. M assanari, 248 F.3d 1235,
1237 n.1 (10th Cir. 2001) (describing functional equivalency). Under that
section, an impairment “must result in ‘marked’ limitations in two domains of
functioning or an ‘extreme’ limitation in one domain.” 20 C.F.R. § 416.926a(a).
“These domains are broad areas of functioning intended to capture all of what a
child can or cannot do.” Id. § 416.926a(b)(1). They include: “(i) “Acquiring and
using information; (ii) Attending and completing tasks; (iii) Interacting and
relating with others; (iv) M oving about and manipulating objects; (v) Caring for
yourself; and, (vi) Health and physical well-being.” Id. The ALJ found that
Jannai had marked limitations in interacting and relating with others, less than
marked limitations in attending and completing tasks, and no limitations in the
other four domains. He concluded that Jannai was no longer under a disability at
-2- any time after July 1, 1997. The Appeals Council denied review and the district
court affirmed the Commissioner’s decision.
W e review the district court’s decision de novo to determine whether the
agency’s decision is free of legal error and supported by substantial evidence.
See Briggs, 248 F.3d at 1237. M rs. Simien raises two issues on appeal: (1) that
the ALJ failed to consider all of the evidence; and (2) that the ALJ failed to
adequately develop the record and provide sufficient assistance to Jannai, who
was not represented by counsel. She first argues that the ALJ ignored the
evidence of Jannai’s diagnoses other than attention deficit hyperactivity disorder
(“ADHD”). 1 She points out that he was also diagnosed with oppositional defiant
disorder (“ODD”), see App., vol. 1 at 192; impulse control disorder, id. at 194,
200; and intermittent explosive disorder, see id. Jannai’s most recent medical
records also include provisional diagnoses of “Bipolar mixed, psychotic features”
and ODD, see id., vol. 2 at 331, and final diagnoses of mood disorder and conduct
disorder, see id. at 332.
1 The Commissioner argues that M rs. Simien waived this argument by failing to present it to the district court. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994). “How ever, we retain discretion to consider issues for the first time on appeal based on the facts of the individual case.” Ross v. U.S. M arshal for E. Dist. of Okla., 168 F.3d 1190, 1195 n.5 (10th Cir. 1999). W e note that M rs. Simien first raised the issue of Jannai’s bipolar diagnosis in her request for review by the Appeals Council. See App., vol. 1 at 7. M oreover, the district court acknow ledged that Jannai alleged disability based on both ADHD and OD D , and that he had been diagnosed as being bipolar. See id., vol. 2 at 423. W hether the ALJ adequately considered Jannai’s other diagnoses is a question of law, and we exercise our discretion to consider it. See Ross, 168 F.3d at 1195 n.5.
-3- The ALJ referenced the Commissioner’s previous determination of
disability based on Jannai’s diagnoses of ADHD and ODD, as well as evidence of
both of those disorders in 1995, prior to the Commissioner’s redetermination. See
id., vol. 1 at 11, 12. The Commissioner argues that these references to ODD, in
conjunction with the ALJ’s finding that Jannai had marked limitations in the
domain of interacting and relating with others, demonstrate that he adequately
considered all of Jannai’s various diagnoses. Although the ALJ must consider all
the evidence, he is not required to discuss every piece of evidence. See Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But “the A LJ . . . must discuss
the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.” Id. at 1010. Jannai’s other diagnoses qualify as
significantly probative evidence because the ALJ must assess the combined effect
of all of a claimant’s medically determinable impairments. See Salazar v.
Barnhart, 468 F.3d 615, 621 (10th Cir. 2006) (reversing where ALJ failed to
consider claimant’s diagnosis of borderline personality disorder). Here, the ALJ
failed to even mention several of Jannai’s diagnoses. Therefore, we agree with
M rs. Simien that the record does not demonstrate that the ALJ considered all of
the evidence in this case. See Clifton, 79 F.3d at 1009.
M rs. Simien also contends the ALJ ignored the evidence of Jannai’s Global
A ssessm ent of Functioning (“G AF”) ratings, which ranged from 30 to 50. A GA F
rating reflects a clinician’s judgment of the patient’s “overall level of
-4- functioning.” Am. Psychiatric Ass’n, Diagnostic and Statistical M anual of
M ental D isorders: D SM -IV -TR 32 (4th ed. Text Revision 2000). A GAF rating in
the range of 21 to 30 indicates that the patient’s
[b]ehavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) O R inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).
Id. at 34. A patient whose GAF rating is in the range of 41 to 50 has “[s]erious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)
OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).” Id. The ALJ was tasked with determining the
level of Jannai’s functioning within the six domains, yet he made no mention of
Jannai’s GAF ratings. W e agree with M rs. Simien that he could not simply ignore
this evidence. See Clifton, 79 F.3d at 1010.
M rs. Simien next argues that the ALJ failed to adequately develop the
record in this case or to provide adequate assistance to Jannai. An A LJ has a
heightened duty to develop the record when a claimant is not represented by
counsel. M usgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). “The duty
is one of inquiry, ensuring that the ALJ is informed about facts relevant to his
decision and learns the claimant’s own version of those facts.” Henrie v. U.S.
Dep’t of Health & Hum an Servs., 13 F.3d 359, 361 (10th Cir. 1993) (quotation
and brackets omitted). “The length, or brevity, of a benefits hearing is not
-5- dispositive of whether or not the ALJ met the heightened obligation to fully
develop the record in a case where the claimant is unrepresented.” M usgrave,
966 F.2d at 1374. Rather, the issue is whether the ALJ asked sufficient questions
in order to ascertain answers to the legally relevant questions. See id. at 1374-75.
M rs. Simien contends the extremely brief hearing in this case was
insufficient to allow the ALJ to answer all of the inquiries required by the
regulations, namely:
(i) W hat activities are you able to perform?
(ii) W hat activities are you not able to perform?
(iii) W hich of your activities are limited or restricted compared to other children your age who do not have impairments?
(iv) W here do you have difficulty with your activities–at home, in childcare, at school, or in the community?
(v) Do you have difficulty independently initiating, sustaining, or completing activities?
(vi) What kind of help do you need to do your activities, how much help do you need, and how often do you need it?
20 C.F.R. § 416.926a(b)(2). The Commissioner maintains the hearing was
adequate because the written record is extensive and the ALJ gave both Jannai
and M rs. Simien an opportunity to describe the problems he was experiencing and
to produce any additional records. See Glass v. Shalala, 43 F.3d 1392, 1396
(10th Cir. 1994) (holding duty of inquiry satisfied in light of documentary record
-6- and claimant’s extensive testimony on nature of her impairments and their impact
on her physical abilities). In contrast to the hearing in Glass, the ALJ’s inquiries
regarding Jannai’s difficulties w ith relevant activities in and out of school were
extremely limited or nonexistent. Jannai’s and M rs. Simien’s combined testimony
spans less than five transcript pages. And, as M rs. Simien points out, Jannai is a
child with at least one severe mental impairment who cannot be expected to
advocate for himself. The record also reflects that M rs. Simien was not capable
on her own, without appropriate assistance from the ALJ, of articulating the
effects of Jannai’s medical problems. W e conclude that the hearing in this case
failed to sufficiently address all of the required inquiries, in light of the
limitations of Jannai and M rs. Simien, and we remand for a new hearing before
the ALJ. W e also note that there are no medical records from the period between
December 1999 and M ay 2004 in the administrative record and that it was during
this time Jannai was apparently diagnosed as bipolar. App., vol. 2 at 316; see
also id. at 396 (at short hearing in A ugust 2003 a different ALJ noted there were
medical records missing from the file); id. at 399 (the ALJ said “I don’t think w e
have everything we need.”). W e suggest that the Commissioner attempt to obtain
the missing records on remand.
Finally, M rs. Simien contends the ALJ should have ordered a consultative
examination of Jannai or called a medical expert to testify. An ALJ “has broad
latitude in ordering consultative examinations,” Hawkins v. Chater, 113 F.3d
-7- 1162, 1166 (10th Cir. 1997), and in seeking opinions of medical experts, see
20 C.F.R. 416.927(f)(2)(iii) (providing that ALJ may consider opinions from
medical experts on nature and severity of impairments). In light of our remand
for a new hearing, and to allow the ALJ to consider the evidence of Jannai’s other
diagnoses and his G AF ratings, we leave to the ALJ the determination whether to
order a consultative examination or to obtain evidence from a medical expert
witness regarding the nature and severity of Jannai’s impairments as they relate to
his ability to function in the six domains. 2
W e REVERSE the judgment of the district court and REM AND this case to
the district court with directions to remand to the Commissioner for further
proceedings consistent with this order and judgment.
Entered for the Court
Stephanie K. Seymour Circuit Judge
2 W e note that in prior hearings scheduled by or held before other A LJs in this case, medical experts were requested to testify. See, e.g., App., vol. 2 at 389 (medical expert testified at hearing in 2000 that “the information in the file is not sufficient . . . to give an opinion at this time”); id. at 391 (ALJ reserves decision pending psychiatrist evaluation of Jannai). That evaluation was apparently not completed.
-8-