FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 15, 2014
Elisabeth A. Shumaker
Clerk of Court
KIMBERLEY BROWN, on behalf of
Z.D.F., a minor,
Plaintiff - Appellant,
v. No. 14-5043
(D.C. No. 4:13-CV-00146-TCK-PJC)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
Kimberley Brown applied for Supplemental Security Income benefits on
behalf of her minor child, Z.D.F. After a hearing at which she testified before an
administrative law judge (ALJ), the Commissioner denied Ms. Brown’s application
and the district court affirmed. Now on appeal, Ms. Brown contends the ALJ failed
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
to evaluate her credibility or properly analyze Z.D.F.’s limitations. Exercising
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we reverse and remand
for further proceedings.
I
Z.D.F. was twenty-three months old when Ms. Brown applied for benefits, and
three-and-a-half years old at the time of the hearing. According to Ms. Brown,
Z.D.F. suffers from speech/language delays and behavioral problems attributable to
sagittal synostosis, a condition in which the suture at the top of the child’s head fuses
prematurely, causing “the head to grow long and narrow, rather than wide,” Aplt.
App., Vol. 1 at 14. Before the ALJ, Ms. Brown testified that Z.D.F. was aggressive
and would hit family members. She also noticed that his speech was not
“understandable,” id., Vol. 2 at 39, and he had “dents in his head,” id. at 40. This led
her to seek out a behavioral specialist who, via CAT scan, diagnosed Z.D.F.’s
condition. Ms. Brown testified that after obtaining a second opinion, doctors
confirmed that Z.D.F.’s developmental delays were associated with his skull
condition. Although doctors recommended surgery, Ms. Brown elected to put it off
because there was no evidence of inter-cranial pressure and she wanted to research
the side-effects of the proposed surgery.
Ms. Brown also testified that Z.D.F. received speech and occupational therapy
to help with his developmental delays. She stated that he had difficulty focusing at
preschool and participating in group settings. Although he could identify some
-2-
colors and animals, he did not know the alphabet and could not count to ten. He also
had trouble pronouncing letters, and, despite improvements with speech therapy,
Ms. Brown could not understand him “[m]ost of the time,” id. at 48. Additionally,
she testified that Z.D.F. could not hold a pencil and, although he could generally use
utensils such as forks and spoons, he could not brush his teeth or fully dress himself.
As for his social interactions, Ms. Brown testified that he cried every day when she
dropped him off, he refused to interact with the other kids, and he was always “in
somebody’s lap” when she came to pick him up. Id. at 50.
After summarizing this testimony and some of the medical evidence, the ALJ
concluded at step three of the three-step sequential process applicable to determining
a child’s claim for benefits, see Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235,
1237 (10th Cir. 2001) (describing process); 20 C.F.R. § 416.924(a) (same), that
Z.D.F. was not disabled. The ALJ determined that Z.D.F. had severe impairments of
speech/language delay and mental organic impairment,1 but he found that these
impairments did not meet or functionally equal a listing contained in 20 C.F.R.
pt. 404, subpt. P, App. 1. See 20 C.F.R. § 416.924(a). The Appeals Council denied
review, and the district court adopted a magistrate judge’s report and
recommendation to affirm the denial of benefits. Ms. Brown subsequently appealed.
1
The ALJ labeled Z.D.F.’s condition “mild organic impairment.” Aplt. App.,
Vol. 2 at 23. The relevant listing, however, refers to “Organic Mental Disorders.”
20 C.F.R. pt. 404, subpt. P, App. 1, § 12.02. Because the ALJ evaluated listing
12.02, we employ the regulatory language referring to organic mental impairment.
-3-
II
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal
standards were applied.” Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)
(internal quotation marks omitted). “In conducting our review, we may neither
reweigh the evidence nor substitute our judgment for that of the agency.” Knight
ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014) (brackets and internal
quotation marks omitted).
A. Credibility
Ms. Brown first contends we must remand this case to the agency because the
ALJ failed to evaluate her credibility. We agree.
“In determining whether a child is disabled, the agency will accept a parent’s
statement of a child’s symptoms if the child is unable to adequately describe them.”
Id. at 1176 (citing 20 C.F.R. § 416.928(a)). “‘In such a case, the ALJ must make
specific findings concerning the credibility of the parent’s testimony, just as he
would if the child were testifying.’” Id. (quoting Briggs, 248 F.3d at 1239). In doing
so, “the [ALJ] must consider the entire case record and give specific reasons for the
weight given to the individual’s statements.” SSR 96-7p, 1996 WL 374186, at *4
(July 2, 1996). “This documentation is necessary in order to give the individual a full
and fair review of his or her claim, and in order to ensure a well-reasoned
determination or decision.” Id.
-4-
Here, however, the ALJ engaged in no credibility analysis at all. He merely
summarized Ms. Brown’s testimony without saying whether it was credible or not.
This was insufficient to satisfy the ALJ’s duty to evaluate her credibility. See Briggs,
248 F.3d at 1239. Indeed, as the ALJ recognized (albeit in boilerplate language),
because Z.D.F. had severe medically determinable impairments that could reasonably
be expected to produce his symptoms, the ALJ was obligated to assess Ms. Brown’s
credibility to determine the intensity, persistence, and functionally limiting effects of
those symptoms. See Aplt. App., Vol. 2 at 23-24; see also SSR 96-7p, 1996 WL
374186, at *3-4 (requiring adjudicator to make a finding about credibility when there
is a medically determinable impairment that could reasonably be expected to produce
the symptoms complained of). But inexplicably, the ALJ failed to assess
Ms. Brown’s credibility. Without that assessment, the ALJ could not properly
determine whether Z.D.F. was disabled.
The government suggests the error was harmless because we can tell the ALJ
at least considered Ms. Brown’s testimony. The problem, though, is that we cannot
tell how the ALJ considered her testimony. If we accept the government’s assertion
that the ALJ found Ms. Brown less than fully credible, then the ALJ erred by failing
to “closely and affirmatively” link his adverse credibility finding to substantial
evidence. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (internal
quotation marks omitted). If, however, the ALJ found Ms. Brown’s testimony
credible, then the error could not have been harmless because her testimony could
-5-
reasonably support a finding of disability. The government disputes this, citing
evidence that purportedly undermines Ms. Brown’s testimony and supports the ALJ’s
decision. Yet there was also evidence confirming Z.D.F.’s condition and describing
him as “severely developmentally delayed.” Aplt. App., Vol. 2 at 315. The ALJ did
not consider or evaluate this evidence, and we will not engage in a post-hoc attempt
to salvage the ALJ’s decision where the ALJ himself did not discuss or weigh it. See
Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007) (“[T]his court may not
create or adopt post-hoc rationalizations to support the ALJ’s decision that are not
apparent from the ALJ’s decision itself.”). Under these circumstances, we cannot
“confidently say that no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter in any other way.” Allen v. Barnhart,
357 F.3d 1140, 1145 (10th Cir. 2004). Consequently, harmless error analysis is
inappropriate, and this case must be remanded to the Commissioner for a proper
credibility evaluation.
B. Analysis of Z.D.F.’s Limitations2
Ms. Brown also contends the ALJ incorrectly analyzed Z.D.F.’s limitations in
concluding that he did not meet a listing. Here again, we agree.
At step three, an ALJ must determine whether a claimant’s impairments meet,
medically equal, or functionally equal a listed impairment. 20 C.F.R. § 416.924(a).
2
Ms. Brown labels her second argument as one challenging the ALJ’s decision
as not supported by substantial evidence. The substance of her brief, however,
contends that the ALJ incorrectly analyzed Z.D.F.’s limitations.
-6-
To functionally equal a listing, an impairment must result in marked limitations in
two, or extreme limitations in one, of the following six domains: (i) acquiring and
using information; (ii) attending and completing tasks; (iii) interacting and relating
with others; (iv) moving about and manipulating objects; (v) caring for oneself; and
(vi) health and physical well-being. Id. § 416.926a(a), (b)(1), (d).
The ALJ concluded that Z.D.F. did not meet a listing because he had no
marked or extreme limitations in any of the six domains. But the ALJ cited no
evidence in reaching his conclusion for the first two domains, and he discussed only
minimal evidence in reaching his conclusion for the last four domains. For the first
domain, the ALJ simply stated, “The claimant has less than marked limitation in
acquiring and using information.” Aplt. App., Vol. 2 at 25. Similarly, for the second
domain, the ALJ stated, “The claimant has less than marked limitation in attending
and completing tasks.” Id. at 26. We need not recite the ALJ’s brief explanations for
the remaining domains because his summary conclusions for the first two inhibit our
review and require reversal.
“The failure to apply the correct legal standard or to provide this court with a
sufficient basis to determine that appropriate legal principles have been followed is
grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)
(brackets and internal quotation marks omitted). An ALJ, in deciding whether a
claimant has marked or extreme limitations within each of the six domains, must
consider the claimant’s “functional limitations resulting from all . . . impairments,
-7-
including their interactive and cumulative effects.” 20 C.F.R. § 416.926a(e)(1)(i).
But we have no way of knowing whether the ALJ properly considered Z.D.F.’s
limitations because the ALJ discussed none of the evidence in reaching his
conclusion for the first two domains. “Such a bare conclusion is beyond meaningful
judicial review.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).
The government urges us to overlook the error, asserting that the ALJ’s
decision is supported by substantial evidence. Whether or not that is true, however,
tells us nothing about whether the ALJ applied the proper legal analysis in
concluding that Z.D.F. did not meet a listing. And if the ALJ did not employ the
proper legal analysis, we cannot determine whether the decision is supported by
substantial evidence. See id. (“In the absence of ALJ findings supported by specific
weighing of the evidence, we cannot assess whether relevant evidence adequately
supports the ALJ’s conclusion that appellant’s impairments did not meet or equal any
Listed Impairment, and whether he applied the correct legal standards to arrive at that
conclusion.”). Accordingly, on remand the ALJ must evaluate the evidence of
Z.D.F.’s limitations and make specific findings why those limitations do or do not
satisfy the requisite levels of severity in each domain for purposes of satisfying the
functional equivalence of a listing.
-8-
III
The judgment of the district court is reversed, and this case is remanded to the
district court with instructions to remand to the Commissioner for further
proceedings consistent with this order and judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
-9-