Todd Hess v. Martin J. O'Malley

92 F.4th 671

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 7, 2024
• Docket: 22-2694
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2694 TODD HESS, Plaintiff-Appellant, v.

MARTIN J. O’MALLEY, Commissioner of Social Security, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:21-cv-00114 — James D. Peterson, Chief Judge. ____________________

ARGUED NOVEMBER 29, 2023 — DECIDED FEBRUARY 7, 2024 ____________________

Before RIPPLE, SCUDDER, and JACKSON-AKIWUMI, Circuit Judges. RIPPLE, Circuit Judge. The Social Security Administration awarded Todd Hess, 46, supplemental security income and disability insurance benefits but denied his claim for disabled adult child benefits. Disabled adult child benefits allow a dis- abled adult child of a retired, disabled, or deceased wage earner to receive, in certain cases, benefits on a parent’s ac- count. To be eligible, Mr. Hess had to establish, among other 2 No. 22-2694

things, that he had a disability that continued unabated from before his 22nd birthday (August 8, 1999) until the filing of his application for benefits on February 7, 2016. Mr. Hess submit- ted that depression, panic disorder, obsessive-compulsive disorder, and other impairments rendered him disabled dur- ing that entire period. 1 After a hearing, and again after a second hearing, an ALJ disagreed. The ALJ concluded that, although Mr. Hess had established that he was disabled as of June 9, 2009, he had not established that he was disabled before then. The ALJ based his decision on gaps in Mr. Hess’s treatment history, notes from Mr. Hess’s physicians during visits punctuating those gaps, and intermittent independent-contractor work per- formed by Mr. Hess. After the Appeals Council did not as- sume jurisdiction, the district court concluded that the ALJ’s decision was supported by substantial evidence. We agree and accordingly affirm the judgment of the district court. I BACKGROUND A. Mr. Hess’s difficulties began at a young age and, at 8 years old, he began attending classes for those with learning disabilities. He was diagnosed with attention deficit disorder, dyslexia, and depression. At 13, he began having panic attacks. His panic attacks were typically accompanied by severe anxiety, rapid heartbeat, shallow breathing, and minor

1 The intermediate procedural path will be explained in more detail later in this opinion. No. 22-2694 3

2 perceptual distortions such as seeing things “in a fog.” In high school, Mr. Hess had “several close friends,” “enjoy[ed] 3 socializing,” and had a long-term girlfriend. But he also struggled with depression, panic attacks, and obsessive- compulsive disorder (“OCD”), and he missed a lot of school as a result. When Mr. Hess was 17, he met with Dr. Mark Moffet, who diagnosed him with partial panic disorder and, at a later visit, OCD. Mr. Hess eventually graduated high school, moved into an apartment with a roommate, and briefly attended trade school. In November 1998, when he was 21, Mr. Hess again met with Dr. Moffet after a gap in treatment lasting more than two and a half years. Dr. Moffet concluded that Mr. Hess “no longer qualifie[d] for the diagnosis of major depression” and 4 that he was “generally functioning quite well.” Mr. Hess’s OCD symptoms, however, had “continued and [were] im- 5 pairing to him in daily life.” These are the last medical rec- ords dated prior to Mr. Hess’s 22nd birthday in August 1999. Mr. Hess’s impairments persisted. In November 2001, at his first meeting with Dr. Moffet in three years, Mr. Hess re- ported “significant worsening of his condition,” primarily on 6 account of an irrational fear of germs. He saw Dr. Moffet a

2 AR 604.

3 AR 576.

4 AR 584.

5 AR 586.

6 AR 588–89. 4 No. 22-2694

few more times over the course of the next year (through No- vember 2002), but he did not see him again after that until April 2004. At that April 2004 appointment, which would be his last appointment with a mental health professional for over three years, Mr. Hess reported anxiety, germ phobia, and bulimia. Mr. Hess and his mother would later testify that he did not seek more frequent treatment because he was unin- sured and unable to afford it. For work in his twenties, Mr. Hess sold shoes, clothing, sunglasses, and skateboards as an independent sales representative. This job required fre- quent travel, which was difficult for him, given his impair- 7 ments. On the personal side, Mr. Hess maintained social re- lationships, dated regularly, and got married. In May 2007 (at 29), Mr. Hess established care with Dr. Richard Stafford, in part because of a panic attack that lasted about 24 hours. During his initial appointment, Mr. Hess was “extremely anxious,” but he “den[ied] major symptoms of biologic depression” and stated that his OCD 8 was “quite livable” and “[did] not interfere with his life.” Mr. Hess continued to see Dr. Stafford after that initial ap- pointment, generally reporting insomnia, depression, stress related to his marriage, and (at times) panic attacks. He con- tinued to work as an independent sales representative and traveled for that job. At some point, he and his wife separated. As explained further below, the parties now agree that Mr. Hess has been disabled since June 2009.

7 The ALJ determined that this work did not rise to the level of “substan- tial gainful activity.” 8 AR 604–05. No. 22-2694 5

B. In February 2016 (at 38), Mr. Hess applied for supple- mental security income (“SSI”), disability insurance benefits on his own account, and disabled adult child benefits on his mother’s account. The Social Security Administration (“SSA”) approved his SSI claim, but denied, at the initial and recon- sideration stages, his claims for disability insurance benefits and disabled adult child benefits. At the initial stage, Dr. Frank Orosz, a state-agency physician, reviewed Mr. Hess’s medical records. He concluded that Mr. Hess was disabled as of October 2015, but not before. At the reconsider- ation stage, Dr. Deborah Pape, another state-agency physi- cian, also reviewed Mr. Hess’s records, considering only the August 1999–December 2009 period. Dr. Pape concluded that Mr. Hess was not disabled during that time period. An ALJ conducted a hearing in December 2018. Mr. Hess testified, answering questions from the ALJ and his mother, who acted as his non-attorney representative. Mr. Hess’s mother also testified, speaking to the “major impediments” 9 Mr. Hess had dealt with “his whole life.” A vocational expert gave testimony about jobs available to similarly situated indi- viduals. The ALJ also considered evaluations from Mr. Hess’s middle school years, documentation of Mr. Hess’s education and work history, documentation from his visits with Dr. Moffet and Dr. Stafford, documentation from his visits with various physicians from 2009 on, and Dr. Orosz’s and Dr. Pape’s opinions.

9 AR 163. 6 No. 22-2694

In February 2019, the ALJ issued two decisions, neither of which is under review in this appeal. In those decisions, the ALJ determined that Mr. Hess became disabled in June 2009 but was not disabled before. One decision concerned his ap- plication for disability insurance benefits. In that decision, the ALJ explained that Mr. Hess was eligible for those benefits because his last insured date was in December 2009. In the other decision, the ALJ determined that Mr. Hess was not eli- gible for disabled adult child benefits because Mr. Hess had not been under a disability for the entire period from before his 22nd birthday (in August 1999) to the filing of his applica- tion (in February 2016). After SSA’s Appeals Council denied his request for re- view, Mr. Hess sought further review in the district court, but, after Mr. Hess filed his opening brief and before the Govern- ment filed a brief, the parties stipulated to a remand to the ALJ. The Appeals Council, informed of the remand stipula- tion, identified several issues with the ALJ’s initial decision for the ALJ to address on remand. First, the Appeals Council noted that the ALJ had said that Mr. Hess had “marked” lim- itations in concentration, persistence, or pace, but he had not explained his reasons for finding this limitation. In the Ap- peals Council’s view, a basis for those limitations did not ap- pear in any of the experts’ opinions, and, moreover, the limi- tations did not seem to correspond to the ALJ’s description of 10 Mr. Hess’s residual functional capacity (“RFC”). Second, the Appeals Council noted that, although the ALJ gave significant

10 In his later decision, the ALJ explained that the “marked” designation was simply a drafting error. The ALJ had meant to state that Mr. Hess had “moderate” limitations, not “marked” limitations, in that category. No. 22-2694 7

weight to Dr. Orosz’s and Dr. Pape’s opinions, he disagreed, without giving reasons, with many limitations that those ex- perts offered. Third, the Appeals Council stated that the ALJ “may want to consider any explanations for the gaps in treat- ment before inferring that they weighed against the accuracy 11 of [Mr. Hess’s] subjective complaints.” On remand, the ALJ held another hearing. Mr. Hess was represented by counsel at that hearing. Mr. Hess testified that, although at the time of the second hearing his symptoms were “extremely bad,” they were “definitely more difficult” prior 12 to June 2009. He stated: “[A]s I’m older, there are things that I can do now, that I couldn’t do in my teenage, early 20 13 years.” Mr. Hess’s mother and a vocational expert also testi- fied. In October 2020, after the second hearing, the ALJ issued the decision now under review. Speaking to the relevant pe- riod prior to June 2009, he found that Mr. Hess did not engage in substantial gainful activity in that period (step one in the five-step inquiry prescribed in the agency’s regulations) and that he had a severe impairment (step two). He also found that Mr. Hess did not have a listed impairment (step three). Before proceeding to step four, the ALJ set forth the following RFC: prior to attaining age 22 through June 8, 2009, the claimant had the residual functional

11 AR 1622.

12 AR 1392.

13 AR 1413. 8 No. 22-2694

capacity to perform a full range of work at all exertional levels but with the following non- exertional limitations: he is limited to understanding, remembering & carrying out simple instructions and routine tasks . . . with only simple work-related decisions or judgments. He is limited to a work environment with no fast paced production quota or rate (any production requirements should be more goal oriented, such as based on a daily or weekly or monthly quota rather than assembly line work or other similar work). He is limited to work environments with no interaction with the general public, only occasional, brief and superficial interactions with co-workers and 14 only occasional interactions with supervisors. The ALJ arrived at that RFC by relying on the notes from Mr. Hess’s treating physicians during the 1999–2009 period, on the state-agency physicians’ findings based on those notes, on the work that Mr. Hess had performed in that period, and to a lesser extent, on Mr. Hess’s testimony regarding his sub- jective symptoms. The ALJ added that he also relied on the many gaps in Mr. Hess’s treatment, not as indication of im- provement in symptoms or of a lack of credibility, but instead 15 as an indication of “an absence of objective evidence.” Next, at step four, the ALJ determined that Mr. Hess had no past relevant work. Finally, the ALJ found that there were jobs that

14 AR 1342.

15 AR 1351. No. 22-2694 9

existed in significant numbers in the national economy that Mr. Hess could have performed in the relevant period (step five), including jobs as a packager, cleaner, and dishwasher or kitchen helper. Based on these findings, the ALJ concluded that Mr. Hess “was not under a disability . . . at any time prior 16 to attaining age 22 through June 8, 2009.” Mr. Hess did not file exceptions with the Appeals Council, and the Appeals Council did not assume jurisdiction, so the ALJ’s decision be- came the final decision of the Commissioner. See 20 C.F.R. § 404.984(d). Mr. Hess again sought review in the district court. He con- tended that the ALJ improperly discounted Dr. Orosz’s opin- ion, improperly assessed Mr. Hess’s subjective symptoms, and improperly failed to explain his determination of Mr. Hess’s RFC. The district court did not accept these argu- ments. It held that the ALJ did not err in assessing Dr. Orosz’s opinions, reasoning that Mr. Hess had not attempted to re- solve inconsistencies that the ALJ identified in those opinions and that Mr. Hess did not explain why further exploration of Dr. Orosz’s “vague” statements would be productive. It fur- ther held that the ALJ’s assessment of Mr. Hess’s subjective symptoms was not “patently wrong,” given the lack of cor- roborating evidence for much of the lengthy period over which he had to prove a disability. Finally, the district court held that the ALJ did not improperly fail to explain Mr. Hess’s RFC. The district court accordingly affirmed the Commis- sioner’s decision. Mr. Hess appealed.

16 AR 1361. 10 No. 22-2694

II DISCUSSION “We will uphold the ALJ’s decision if it uses the correct legal standards, is supported by substantial evidence, and builds an accurate and logical bridge from the evidence to the ALJ’s conclusion.” Jeske v. Saul, 955 F.3d 583, 587 (7th Cir. 2020) (cleaned up). A. In this appeal, Mr. Hess challenges the ALJ’s October 2020 decision. In that decision, the ALJ both denied Mr. Hess’s claim for disabled adult child benefits and found a disability onset date for his disability insurance benefits award that was later than the date Mr. Hess had alleged. Mr. Hess focuses on the denial of disabled adult child’s benefits, a type of child’s insurance benefits. Child’s insurance benefits have been avail- able since the earliest days of social security. See Social Secu- rity Act Amendments of 1939, Pub. L. No. 76-379, § 202(c), 53 Stat. 1360, 1364. Under child’s insurance benefits, when a wage earner who has paid the requisite amount of social se- curity taxes retires or becomes disabled, SSA will pay benefits not only to the wage earner but also to the wage earner’s mi- nor children. See 42 U.S.C. § 402(d); Thomas E. Bush, 1 Social Security Disability Practice § 141, 1-38 (2d ed. 2020). In addi- tion, when the wage earner dies, minor children can receive benefits. § 402(d). A minor child can receive child’s insurance benefits until age 18, or, in some cases, until age 19. Id. A mi- nor child need not be disabled to obtain these benefits. Id. In 1956, Congress extended these benefits to disabled adult children. See Social Security Act Amendments of 1956, Pub. L. No. 84-880, § 101, 70 Stat. 807, 807. Accordingly, a No. 22-2694 11

disabled adult child of a retired, disabled, or deceased wage earner can, in certain cases, receive the same type of benefits that a minor child of a retired, disabled, or deceased wage earner would receive. See § 402(d)(1); Bush, supra, § 141, 1-39. Eligibility for these benefits is limited, however, in one critical respect: It is not sufficient for an adult applicant to show a disability at the time of the application and to satisfy the re- quirements applicable to minor applicants (being unmarried and the child of and dependent on a qualified insured person, see § 402(d)). An adult applicant must also show that he or she had a disability that continued unabated from before the ap- plicant’s 22nd birthday to the time of the filing of the applica- tion. See Smolen v. Chater, 80 F.3d 1273, 1280 (9th Cir. 1996) (collecting cases); Reading v. Mathews, 542 F.2d 993, 997 (7th 17 Cir. 1976). The Social Security Act defines “disability” as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d). In de- termining whether a claimant is or was disabled, ALJs under- take a five-step inquiry into: (1) whether the claimant is currently [un]em- ployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s impair- ment meets or equals one of the impairments

17 See also S. Rep. No. 84-2133, at 5 (1956) (expressing intent to benefit the individual and the caregivers of the individual “who because of a mental deficiency never grows up, or who because of a physical impairment re- quires constant care throughout his life”). 12 No. 22-2694

listed by the [Commissioner] . . . ; (4) whether the claimant can perform [his] past relevant work; and (5) whether the claimant is capable of performing work in the national economy. Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001) (quoting Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000)); see 20 C.F.R. § 404.1520. “[I]f the ALJ can make a conclusive finding at any step that the claimant either is or is not disabled, then she need not progress to the next step.” Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). B. Mr. Hess challenges the ALJ’s evaluation of Dr. Orosz’s findings and the ALJ’s evaluation of his subjective symptoms. We will examine each of his challenges in turn. 1. Mr. Hess raises several challenges to the ALJ’s evaluation of Dr. Orosz’s findings. Mr. Hess first focuses on Dr. Orosz’s checkbox findings that he was “moderately limited” in his ability to (1) “maintain attention and concentration for ex- tended periods,” (2) “perform activities within a schedule, maintain regular attendance, and be punctual within custom- ary allowances,” and (3) “complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a constant pace without an un- 18 reasonable number and length of rest periods.” Mr. Hess submits that the ALJ erred in failing to incorporate these lim- itations into the RFC.

18 See AR 188–90, 205–07. No. 22-2694 13

We cannot accept this contention. The RFC did account for these limitations. It recited that Mr. Hess was “limited to a work environment with no fast paced production quota or rate” and that “any production requirements should be more goal oriented, such as based on a daily or weekly or monthly 19 quota.” In such an environment, it would be less important for Mr. Hess to stay concentrated or on schedule because his productivity would be measured against meeting goals. Fur- ther, because the RFC limits Mr. Hess to work that is not “fast paced,” the environment would be even more responsive to Mr. Hess’s limitations. Moreover, when we recall that Dr. Orosz rated those limitations merely “moderate” rather than “marked,” the ALJ properly accounted for Dr. Orosz’s 20 “moderate limitations” findings. Mr. Hess next focuses on Dr. Orosz’s narrative statements that he “[m]ay have di[ff] with conc & attn” and that he 21 “[m]ay have diff w/ stress & change.” Mr. Hess submits that the ALJ should have incorporated those statements into his RFC. We cannot agree. As the ALJ noted, these notations were

19 AR 1342.

20 See Pavlicek v. Saul, 994 F.3d 777, 783 (7th Cir. 2021) (“[T]he ALJ reason- ably relied on the narrative RFC because it was in fact consistent with the ‘moderate’ checklist ratings. . . . A ‘moderate limitation’ is defined by reg- ulation to mean that functioning in that area is ‘fair.’ 20 C.F.R. Pt. 404, Subpt. P, App. 1. As the Commissioner points out, ‘fair’ in ordinary usage does not mean ‘bad’ or ‘inadequate.’”). 21 AR 190, 207. 14 No. 22-2694

22 vague and not necessarily helpful. Nor can we say that the ALJ was required to probe further into what Dr. Orosz meant by those statements. ALJs have a “duty to develop a full and fair record” in social security cases. Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009). But the duty is lower when the claimant is represented by counsel, and in all cases, “the re- viewing court defers to the ALJ on the question of how much evidence must be gathered.” Bertaud v. O’Malley, 88 F.4th 1242, 1245 (7th Cir. 2023). Mr. Hess had not one but two hear- ings, and he was represented by a non-attorney representa- tive at one and an attorney at the other. The vague and tenta- tive nature of Dr. Orosz’s statements simply reflect the diffi- culty of opining on a period spanning over 16 years, given a record with so many significant gaps. The ALJ was entitled to conclude that it would not have been productive to ask an- other expert to review Mr. Hess’s decades-old records and clarify Dr. Orosz’s statements. Mr. Hess also contends that the ALJ, without explanation, gave Dr. Orosz’s assessment “significant” weight in one of his 23 earlier decisions but only “little” weight in his later decision. We cannot accept this characterization of the ALJ’s decisions. In one of his February 2019 decisions, the ALJ gave “signifi- cant” weight to Dr. Orosz’s specific findings of medical non- compliance and improvement in symptoms before Mr. Hess reached age 22 but did not give much weight to Dr. Orosz’s

22 See Leisgang v. Kijakazi, 72 F.4th 216, 221 (7th Cir. 2023) (ALJ not required to adopt the “precise wording” of physician’s “vague” statements). 23 Hess Br. 43. No. 22-2694 15

24 findings regarding the overall period at issue. In his October 2020 decision, the ALJ did not address specifically the find- ings of medical noncompliance and improvement, but he did say that he gave Dr. Orosz’s findings for the overall period 25 “little” weight. A closer examination of the ALJ’s decisions therefore reveals no significant modification in the weight at- tributed to Dr. Orosz’s assessment. 2. Mr. Hess’s other objections to the ALJ’s decision focus on the ALJ’s evaluation of his subjective symptoms. He first con- tends that the ALJ improperly discounted his subjective symptoms. We will overturn the ALJ’s evaluation of a claim- ant’s subjective symptoms only if it is “patently wrong, which means that the decision lacks any explanation or support.” Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014). The ALJ reasonably concluded that Mr. Hess’s descrip- tions of his symptoms between 1999 and 2009 were only par- tially consistent with the evidence. The treatment notes of many of Mr. Hess’s physicians (including notes stating that he was “generally functioning quite well” and that his OCD 26 “did not interfere with his life” ) support the conclusion that his alleged impairments were not disabling. In determining that Mr. Hess could have worked in the less demanding envi- ronment of the sort described in the RFC, the ALJ also

24 AR 1555.

25 AR 1352 (emphasis removed).

26 AR 584, 604. 16 No. 22-2694

reasonably relied on the extensive travel that Mr. Hess did for his work. Mr. Hess also submits that the ALJ’s reliance on the gaps in his treatment violated Social Security Ruling 16-3p. That ruling provides, in relevant part, that an ALJ may discredit an individual’s subjective complaints regarding the intensity and persistence of symptoms “if the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual’s subjective complaints.” SSR 16-3p, 82 Fed. Reg. 49,462, 49,466 (Oct. 25, 2017). But an ALJ should “not find an individual’s symptoms inconsistent with the ev- idence in the record on this basis without considering possible reasons he or she may not . . . seek treatment consistent with the degree of his or her complaints.” Id. According to Mr. Hess, the ALJ failed to account for his and his mother’s testimony that the reason he did not seek more frequent treat- ment was not that his symptoms were in remission, but that he was uninsured and could not afford the treatment. We do not agree that the ALJ failed to account for this tes- timony and thereby violated SSR 16-3p. The ALJ did not rely on the gaps in Mr. Hess’s treatment for the inference that Mr. Hess’s symptoms were in remission. Instead, for the ALJ, the gaps simply underscored Mr. Hess’s failure to carry his burden on his disabled adult child benefits claim of proving that he was disabled for the vast period from before Mr. Hess’s 22nd birthday (August 8, 1999) to the filing of his application on February 7, 2016. In evaluating the many lengthy gaps between Mr. Hess’s visits, the ALJ did not have before him any corroborating evidence regarding the serious- ness of Mr. Hess’s symptoms during those gaps. There were no statements from lay witnesses, such as coworkers, trade No. 22-2694 17

school instructors, friends, or family members other than his mother. Mr. Hess instead rested his case on his and his mother’s testimony. This lack of corroboration was particu- larly material given that, on some visits following a gap in treatment, Mr. Hess reported improvements in symptoms. The ALJ was entitled to consider Mr. Hess’s failure to present more evidence on his symptoms during these gaps, without violating SSR 16-3p. Conclusion Because no legal error was committed and the administra- tive decision is supported by substantial evidence, the district court’s decision is affirmed. AFFIRMED