Nelson v. Apfel

• Decision Date: 15 December 1997
• Docket Number: No. 96-2242,96-2242
• Citation: 131 F.3d 1228
• Parties: Justin NELSON, Plaintiff-Appellant, v. Kenneth S. APFEL, * Commissioner, Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1228

131 F.3d 1228

54 Soc.Sec.Rep.Ser. 666

Justin NELSON, Plaintiff-Appellant, v. Kenneth S. APFEL, ^* Commissioner, Social Security, Defendant-Appellee.

No. 96-2242.

United States Court of Appeals Seventh Circuit.

Argued April 7, 1997.

Decided Dec. 15, 1997.

David W. Sutterfield (argued), Sutterfield & Johnson, P.C., Effingham, IL, for Plaintiff-Appellant.

James A. Lewis, Office of the United States Attorney, Springfield, IL, Mary Thorson (argued), Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, FLAUM and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Justin Nelson, an eight-year-old claimant for Supplemental Security Income ("SSI"), appeals from the denial of his application for benefits. Although we are troubled by the manner in which Justin's hearing was conducted, we find that Justin was able to present all of the relevant evidence about his disability, and was not prejudiced by any error in the hearing. Furthermore, because the decision to deny benefits was based on substantial evidence, we affirm.

I.

Justin Nelson first applied for SSI benefits at the age of six, in March, 1992. Justin had been diagnosed as suffering from attention deficit hyperactivity disorder ("ADHD"). The Social Security Administration denied his initial application, and also denied his motion to reconsider. Justin then requested a hearing before an administrative law judge ("ALJ"), and his case was set for a hearing before ALJ Lawrence E. Shearer. By the time of the hearing, Justin was eight years old. He was represented at the hearing by his mother, Charlene Nelson, who waived his right to an attorney. ¹ The ALJ took testimony from three witnesses: Justin, Nelson, and Dr. Dennis Anderson, an expert retained by the Social Security Administration. The ALJ's examination of Justin was, not surprisingly, very cursory, lasting for about two pages of the transcript. Justin answered simple "yes/no" questions about whether he was in any special education classes, whether he was currently taking medication for his condition, whether he got into trouble at school, and whether he could write his name. When the ALJ asked if Justin knew why he was at the hearing, Justin indicated he did not know.

ALJ Shearer next questioned Charlene Nelson, and the main focus of his examination was whether Nelson had anything to add to the record regarding Justin's problems. The ALJ had made the approximately four hundred page record available to Nelson one half hour before the hearing commenced. His first question was, "What do you believe that I need to know that's not contained in the record here with regard to his problems? Now, as I see in the record he has somewhat of an attention deficit disorder problem, but he is on Ritalin?" See Transcript of Hearing before ALJ Lawrence E. Shearer, April 6, 1994 (hereafter "Transcript of Hearing"), at p. 8. Nelson indicated that although Justin was taking Ritalin, it was not controlling his behavior problems. The ALJ specifically questioned Nelson only about areas of concern that she raised, including Justin's academic performance, his troubles at school, and his special education classes. The ALJ then solicited further information about Justin's medical records prepared by his psychiatrist, Dr. Boshauni, and about Justin's attendance at therapy sessions with a social worker.

At this point, ALJ Shearer stopped asking specific questions, and began asking generally, "Is there anything else you'd like to tell me?" In response to these general questions, Nelson explained that Justin took other medications besides Ritalin, including a medication intended to remedy his behavior problems, and an appetite stimulant to counteract the appetite-suppressing effects of the Ritalin and behavior control medications. She also indicated that Justin had trouble sleeping, and that he had tested as mildly mentally retarded. Because other documents already in the record indicated that Justin was not mentally retarded, the ALJ inquired further and determined that Justin's therapist had made this diagnosis. He allowed Nelson two weeks to produce the results of the therapist's testing. Because Nelson reported that the therapist had misplaced the results, he stated that Nelson could submit any materials from the therapist, including her opinion as long as she provided a basis for her opinion.

This discussion was followed by many pages of ALJ Shearer asking "Anything else?" and Nelson providing information in dribs and drabs. In fact, during the course of the hearing, ALJ Shearer asked if Nelson had "anything else to add" no fewer than fifteen times in fifteen pages of testimony. To the extent the ALJ asked specific questions, he phrased them in the negative, in a cross-examining, leading style. For example, "He hasn't been expelled from any classes, has he?" Transcript of Hearing at p. 17; "He has been behaving in the classroom hasn't he?" Id.; "Well he can dress himself can't he?" Id., at p. 18. At one point during the questioning, Nelson broke down in tears and asked for a break to "rest for a minute." Id., at p. 19. The ALJ allowed the break, after which Nelson apologized, stating "I'm sorry I just feel really uncomfortable saying those kinds of things around him." The ALJ replied that he needed to ask questions, and Nelson reiterated, "It just feels very awkward with him right here." Id. Although ALJ Shearer had already threatened twice to send the claimant's sister into the hallway because she was disrupting the proceedings, it apparently never occurred to him to send the claimant out into the hallway in order to spare his mother the trauma of listing all of his developmental and behavioral difficulties in front of him. In response to ALJ Shearer's repeated and impatient query "Anything else?" Nelson testified that Justin reversed letters when writing, even when writing his own name, that he was violent with his siblings, that he was unable to tell the difference between right and wrong, that he was unable to remember and execute simple, two-step instructions, that he was unable to dress himself appropriately for the weather, and that he couldn't remember the rules in simple games.

The ALJ then briefly questioned Dr. Dennis Anderson, a clinical psychologist, who had reviewed the documentary evidence and listened to the testimony of Justin and Nelson. Dr. Anderson stated he would like to know more about Justin's father, and the ALJ allowed him to directly examine Nelson on this subject. Dr. Anderson elicited that Justin's father had abandoned the family approximately four years earlier, that Justin had come to accept this after some initial difficulty, and that there were adult male role models in Justin's life. ALJ Shearer then questioned Dr. Anderson in his capacity as an expert witness, regarding whether any evidence in the record supported Nelson's claim that Justin was mildly mentally retarded. Dr. Anderson testified that the record contained no indication of mental retardation or borderline intellectual functioning. The ALJ then questioned Dr. Anderson regarding each of the six domains used to determine disability under Social Security regulations: cognitive development, communicative development, motor development, social development, personal behavior development, and concentration, persistence and pace. Dr. Anderson agreed that Justin was less than moderately impaired in cognitive development, communicative development, and social development. He testified that Justin showed no impairment in motor development, but was moderately impaired in personal behavior development and concentration, persistence and pace. Dr. Anderson testified that Justin suffered from Attention Deficit Hyperactivity Disorder ("ADHD"), and that his symptoms were between mild and moderate for the most part.

Charlene Nelson then attempted to cross-examine Dr. Anderson about the validity of Justin's earliest IQ tests in light of the fact that ADHD cannot be readily diagnosed until a child is seven or eight years old. The ALJ immediately interrupted to assert his own view that IQ does not decrease unless there is a specific cause, such as a head injury. Dr. Anderson agreed with the ALJ, who then re-examined Nelson about Justin's head injury at age two. After the ALJ questioned Dr. Anderson and Nelson regarding the issue of Justin's IQ, Nelson was allowed to resume her questioning of Dr. Anderson. After again attempting to elicit an explanation from Dr. Anderson about the decline in Justin's IQ, the ALJ again interrupted her cross-examination with his own questions about IQ. He then asked Nelson if she had any other questions for Dr. Anderson, and she declined to question him further. The ALJ then asked Nelson generally why she thought her son was entitled to benefits, and she stated her opinion that he was so impaired by ADHD that if he were an adult, he would not be capable of working. The ALJ gave Nelson two weeks to submit any additional evidence.

Although more than two weeks passed before Nelson submitted additional documents, the ALJ appears to have considered the evidence submitted to the extent it was not duplicative of evidence already received. All in all, the ALJ had considerable documentary evidence available about Justin's abilities and disabilities. ² The ALJ found that although Justin may be regarded as having a severe impairment that limits his ability to perform age-appropriate activities, the medical evidence did not show that his conditions were severe enough to qualify for benefits. Decision, June 11, 1994, at p. 3. After reviewing the documentary evidence and the testimony at the hearing, the ALJ made several findings. He concluded that 1) Justin was eight years old; 2) he was not engaged in substantial gainful activity; 3) he had the medical conditions of attention deficit hyperactivity disorder, learning disability and mild...