Brindisi ex rel. Brindisi v. Barnhart, 02-1365.

• Decision Date: 08 January 2003
• Docket Number: No. 02-1365.,02-1365.
• Parties: Tina BRINDISI, on behalf of Robert BRINDISI, a minor, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

315 F.3d 783

Tina BRINDISI, on behalf of Robert BRINDISI, a minor, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 02-1365.

United States Court of Appeals, Seventh Circuit.

Argued September 25, 2002.

Decided January 8, 2003.

Barry A. Schultz (argued), Evanston, IL, for Plaintiff-Appellant.

Carole J. Kohn (argued), Social Security Admin. Office of Gen. Counsel, Region V, Chicago, IL, for Defedant-Appellee.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

This is an appeal from the denial of Supplemental Security Income benefits to Robert Brindisi, a minor. Because we find that the administrative law judge's opinion does not adequately articulate the basis for the denial of benefits to Robert, we reverse the decision of the district court upholding the opinion and remand for further proceedings.

I. BACKGROUND

Tina Brindisi applied for Supplemental Security Income ("SSI") benefits on behalf of her son, Robert, in April 1996, when Robert was four years old. Ms. Brindisi claims that Robert suffers from a hearing impairment, speech delay, oppositional defiant disorder, attention deficit disorder, hyperactivity, and separation anxiety, qualifying him as "disabled" and entitling him to SSI benefits. Robert has a history of visiting doctors and specialists for hearing and speech-related problems and has had numerous surgical procedures to place tubes in his ears. In addition, Robert began to take Ritalin in 1997, and Ms Brindisi claims that Robert displays a variety of inappropriate acts of physical aggression, refuses to separate from her, and has poor interaction skills.

After a hearing to consider Robert's application, an administrative law judge ("ALJ") found that Robert is not disabled. Following this decision, Ms. Brindisi filed a request for review to the Social Security Administration's appeals council, which denied the request, leaving the decision of the ALJ as the final decision of the Commissioner. Brindisi then filed a complaint challenging the ruling of the Commissioner in federal court. The district court granted summary judgment in favor of the Commissioner. Brindisi filed a timely appeal with this court, asking us to review the decision of the ALJ.

II. ANALYSIS

We must affirm the factual findings of the ALJ if they are supported by substantial evidence. 42 U.S.C. § 405(g); Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.2002). However, where the Commissioner's decision "lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.2002).

A. Disability determination

The Social Security Administration's determination of Robert's claim was made under the Interim Final Rules adopted by the Commissioner in accordance with the changes to children's disability benefits in the Personal Responsibility and Work Opportunity Reconciliation Act. See 42 U.S.C. § 1382c. Under the Act, to be considered disabled, a child must have a "physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." Id. § 1382c(a)(3)(C)(I). In order to understand the ALJ's determination in this case we think it necessary to outline the process of determining disability under the new rules.

A three-step process is employed to decide whether a child is disabled. First, if the child is engaged in substantial gainful activity, his or her claim is denied. 20 C.F.R. § 416.924(a). Second, if the child does not have a medically determinable "severe" impairment or combination of impairments, then his or her claim is denied. Id. Finally, for a child to be considered disabled, the child's impairment(s) must meet, medically equal, or functionally equal the requirements of a listed impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Id. To find an impairment functionally equivalent to a listing, an ALJ must analyze its severity in five age-appropriate categories and find an "extreme" limitation in one category or a "marked" limitation in two categories. 20 C.F.R. § 416.926a(a).¹ It is at this third step — determining whether Robert's impairments meet or medically equal a listing or are functionally equivalent to a listing — that the ALJ determined Robert is not disabled.

We begin our discussion with the ALJ's finding that Robert's impairment does not meet nor is medically equal to a listing. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "listings"). Robert applied for benefits under three listings: 102.08 (hearing impairments), 112.06 (anxiety disorders),² and 112.11 (attention deficit hyperactive disorder).³ See id. The ALJ's finding that Robert did not qualify as disabled because he did not meet listing requirements 102.08, 112.06, or 112.11 is extremely brief:

The claimant has a combination of severe impairments which include: speech and language delays, recurrent otitis media, and ADD. However, none of these impairments meet the requirements of an impairment listed in Appendix 1 to subpart P of regulation no. 4.

We find this conclusion to be devoid of any analysis that would enable meaningful judicial review. See Steele, 290 F.3d at 940. First, the ALJ's opinion does not even mention the specific listings under which it considered Robert's impairments. As we have recently noted, failure to discuss or even cite a listing, combined with an otherwise perfunctory analysis, may require a remand. Id. at 936. The omission of any discussion of Robert's impairments in conjunction with the listings frustrates any attempt at judicial review, especially in a case such as this where a claim is made under three different listings. Such a lack of reasoning prevents us from applying the decision structure undergirding disability determinations to a substantive analysis of Robert's impairments. See Scott, 297 F.3d at 595 (failure to reference the listing left the court with "grave reservations as to whether [the ALJ's] factual assessment addressed adequately the criteria of the listing").

In addition, the ALJ's opinion does not sufficiently discuss the conflicting evidence regarding Robert's impairments. Most significantly, the opinion fails to mention the strongest piece of evidence supporting Robert's claim for benefits under the listing for hearing impairments — an audiogram administered on December 18, 1995. In order to meet listing 102.08, Robert must have an "inability to hear air conduction thresholds at an average of 40 decibels or greater in the better ear, and a speech and language disorder which significantly affects the clarity and content of the speech." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 102.08(B)(3). The December 1995 audiogram found Robert had a hearing level of an average of 50 decibels in his right ear and 40 decibels in his left ear. The parties disagree as to whether these results meet the criteria of listing 102.08 or fall just short. The fact that the parties agree that Robert meets the second half of the listing, a significant speech disorder attributable to his hearing impairment, only increases the importance of the consideration of this audiogram. Yet the ALJ's opinion is silent as to this critical piece of evidence, despite the ALJ's duty to acknowledge potentially dispositive evidence, Stephens v. Heckler, 766 F.2d 284, 288 (7th Cir.1985), since "[t]he ALJ's opinion is important not in its own right but because it tells us whether the ALJ has considered all the evidence, as the statute requires him to do." Id. at 287. Without even a mention, we are left to wonder whether the audiogram was even considered. Here the ALJ should have discussed not only the results of the December 1995 audiogram, but also whether those results meet the requirements of listing 102.08.

While the ALJ's discussion of whether Robert functionally equals a listing is lengthier, even here the opinion's failure to clearly identify which impairments were considered leaves us without means to review its conclusion. Of course an ALJ, when considering whether a child is disabled under a functional analysis, must consider the combined effect of the impairments. 24 C.F.R. § 926a(a); Sims v. Barnhart, 309 F.3d 424, 432 (7th Cir.2002); Clifford v. Apfel, 227 F.3d 863, 873 (7th Cir.2000); Green v. Apfel, 204 F.3d 780, 782 (7th Cir.2000). The ALJ determined that Robert has a marked limitation in the area of cognitive/communication development; less than a marked limitation in personal development, social development, and concentration/persistence/pace; and no evidence of limitations in his motor development. In considering each area of functioning, however, the ALJ appears to have alternated between discussion of Robert's hearing and speech impairments and those related to his behavioral problems. For example, the...