Hudson ex rel. Jones v. Barnhart, 02-4107.

• Citation: 345 F.3d 661
• Decision Date: 30 September 2003
• Docket Number: No. 02-4107.,02-4107.
• Parties: Harriet Hudson, on behalf of Sterling Jones, Appellant v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

345 F.3d 661

Harriet Hudson, on behalf of Sterling Jones, Appellant v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Appellee.

No. 02-4107.

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2003.

Filed: September 30, 2003.

Philip Senturia, argued, St. Louis, MO, for appellant.

Jennifer Mills, argued, Office of General Counsel, Social Security Administration, Kansas City, MO (Rhonda Norcross-Kempker, Assistant Regional Counsel, Social Security Administration, Kansas City, MO, on the brief), for appellee.

Before WOLLMAN, MAGILL, and BEAM, Circuit Judges.

WOLLMAN, Circuit Judge.

In April 1999, Harriet Hudson applied for Supplemental Security Income benefits on behalf of her son, Sterling Jones (Sterling). After her application for benefits was denied, she requested a hearing before an Administrative Law Judge (ALJ), who determined that Sterling was not disabled. Hudson's administrative appeal was unsuccessful, and she then sought judicial review. Hudson now appeals from the district court's¹ affirmance of the Commissioner's denial of benefits. We affirm.

I. Background

Sterling was born on May 15, 1986. During his seventh grade year, Sterling's parents and his school requested a multidisciplinary evaluation. A Special School District Evaluation Summary, dated February 9, 1999, certified that Sterling, who was then functioning in the lower third of his class, required special education and related services. Hudson reported that Sterling seemed to enjoy school and made friends easily but became frustrated when doing homework. The summary indicated that Sterling had problems that "may interfere with learning," including "difficulty organizing time and work materials, difficulty initiating and remaining on task, needing directions/lessons repeated, requiring one-to-one instruction, not completing class assignments or homework, working slowly, and having difficulty working independently." The summary also indicated that teachers did not believe Sterling was "mean-spirited"; rather, they viewed him as "excessively impulsive and immature," frequently acting as a "class clown."

On February 24, 1999, Sterling was seen by Dr. Michael J. Shanker at Northwest Psychiatric Associates. Sterling was diagnosed as suffering from attention-deficit/hyperactivity disorder (ADHD) and oppositional defiant disorder. He was assigned a rating of 55 on the Global Assessment of Functioning Scale (GAF).² Dr. Shanker recommended that Sterling resume taking the drug Ritalin.

By letter dated March 24, 1999, Hudson was informed that Sterling would be suspended from school for the remainder of his seventh grade year. An earlier letter indicated that Sterling had been referred to the assistant principal's office twenty-nine times during the school year.

Sterling was seen again at Northwest Psychiatric Associates in March and April 1999. During the April visit, his parents reported that when on medication Sterling was more compliant, talked back less, and had fewer arguments with his siblings.

On a teacher questionnaire dated June 4, 1999, school counselor Marilyn Edds-England stated that Sterling had attention problems and difficulty keeping up with the class. She commented that Sterling was a "sweet little boy" in one-on-one situations, but that because of his immaturity he could be difficult in a classroom setting.

On July 9, 1999, Sterling was evaluated by Sherman Sklar, a consultative psychologist. Hudson reported that Sterling had earlier been taking Ritalin and that although she had noticed improvements in his behavior, she had taken him off the medication because of concerns about depression. Hudson also reported that the medication was subsequently restarted, but that Sterling had quit taking it at the end of the school year. Sklar observed that Sterling was very quiet; that his behavior was socially appropriate with no signs of overactivity; that his focus was good; and that he showed no sign of attentional deficit. Sklar determined that Sterling did not exhibit any symptoms of ADHD, but that his history instead pointed to a conduct disorder. He characterized Sterling's social attitudes and behaviors as "oppositional and rebellious." Sklar opined that Sterling was "capable of understanding and remembering simple instructions" and that he would "have no difficulty with tasks requiring sustained concentration and persistence." He assigned Sterling a GAF of 57.

Sterling returned to Northwest Psychiatric Associates on August 9, 1999, and was diagnosed with major depressive disorder, ADHD, and oppositional defiant disorder. He was prescribed an additional medication.

During the 1999-2000 academic year, Sterling repeated the seventh grade. On a November 17, 1999, questionnaire, Elizabeth Bellis, Sterling's teacher, reported that he was constantly disruptive and did not seem to be able to control his behavior. Bellis indicated that Sterling was not keeping up with his class work, which had already been modified, did not follow instructions, and needed one-on-one attention. Bellis also reported that although Sterling aggravated other students, he was "somewhat likable to them" and was "accept[ed]."

Sterling was seen again at Northwest Psychiatric Associates in both November and December 1999. During the December session, Sterling reported that he was passing all his classes, that he was completing his assignments at school, and that his focus had improved.

Sterling's Individualized Education Program (IEP) was reevaluated in February 2000, and his IEP team agreed that he continued to require special education. Teachers observed Sterling's "high activity level, difficulty following rules, impulsiv[eness], excessive need for attention, verbal outbursts, and inability to accept any personal blame." He was described as the "`class clown' to excess." His formal discipline record documented at least seventeen office referrals for a variety of violations and at least two out-of-school suspensions. According to the Reevaluation Summary, "Behaviors which were noted at the time of the 2/99 initial SSD evaluation have escalated in frequency and intensity. The reevaluation team determines that behaviors have now become diagnostically significant." Nevertheless, Sterling also demonstrated academic skills that, although below grade level, "[were] certainly functional." In addition, he enjoyed "creative endeavors" and could "write at length on topics of personal interest." The IEP team observed that Sterling's "chances of success appear to be increased in a smaller group." Teachers also opined that medication was "a helpful intervention for [Sterling]," noting that that "it [was] quickly apparent if [the medication] [had] been missed or delayed." It was recommended that he be moved from a modified regular program to a self-contained program.

Sterling returned to Northwest Psychiatric Associates in March 2000, at which time it was reported that he was maturing, had friends, and was not fighting with his siblings as much. No additional suspensions from school were reported.

Sterling was seen by Dr. Kabir, a psychiatrist, in August and September 2000. Dr. Kabir diagnosed Sterling with dysthymic disorder and assigned him a GAF of 50.

During the administrative hearing held on September 7, 2000, Hudson testified that three of Sterling's classes were in regular classrooms and that his other three classes were in a resource room. She testified that Sterling had difficulty concentrating, was in a "playful mood all the time," had difficulty keeping friends, and was overly emotional, crying "at least three times a day." Nevertheless, Hudson reported that Sterling's behaviors had improved somewhat with medication. She indicated that she had not recently had any notes or telephone calls from the school regarding his behavior.

At the close of the hearing, the ALJ ordered a new psychological evaluation. On October 31, 2000, Alan Reeves, Ph.D., conducted this evaluation, during which Hudson reported that Sterling's grades had "improved tremendously," and that he was now a "B" student. Dr. Reeves made the following conclusions:

[Sterling] appears to have the ability to understand[] and remember simple instructions. He has the ability to follow simple instructions. He has the ability to sustain his concentration and persist on a task. He appears to have a low frustration tolerance however and his judgment is in question. He has the ability to perform activities on a schedule and to maintain ... regular attendance, with assistance. He will have difficult[y] however with any type of monitoring or supervision on a task.... He will need to have some type of special supervision (a person that will be patient and understanding of him, for him to complete a task or to stay on a job). His ability to make daily decisions is poor and will effect [sic] his success in school and in life.... His ability to complete a normal school or work day will be interrupted by his psychological based symptoms ... and will cause him to need more rest from task[s] tha[n] normal.... [Sterling's] social skills are poor as with most ADHD children. His difficulty getting along with others will interfere with his academic and work success. His conflict with peers will be distracting and will isolate him.... H[e] has some restrictions of daily activities in the form of his poor social skills and his poor judgment.

(Admin. R. at 165-166.) Dr. Reeves diagnosed Sterling with ADHD and dysthymia and assigned him a GAF of 59. Dr. Reeves also completed a Medical Source Statement Of Ability To Do Work-Related Activities, dated November 6, 2000, on which he marked blocks indicating that Sterling had no useful ability to function in a wide array of work-related activities.

During the January 11, 2001, administrative hearing, Hudson testified that Sterling was taking medication for both ADHD and depression and that the medication was helping. She stated...