Dontoya BLEDSOE, on behalf of J.D.B., a minor child, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security Administration, Defendant-Appellee.
No. 12-5213.
United States Court of Appeals, Tenth Circuit.
Nov. 15, 2013.
544 F. Appx. 823
The judgment of the district court is affirmed.
Richmond J. Brownson, Esq., Lisa J. Mcnair Palmer, Timоthy M. White, Esq., AAA Disability Advocates, Tulsa, OK, for Plaintiff-Appellant.
Aplt.App. at 315. CP Kelco presented uncontested evidence it investigated the rumor and found no basis for a claim that “the bidders saw the test or its contents before the tests were administered.” Id. at 397, ¶ 4.
* In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in this action.
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit Judge.
ORDER AND JUDGMENT **
DAVID M. EBEL, Circuit Judge.
Dontoya Bledsoe brought this сase seeking judicial review of the Commissioner‘s determination that her minor child, J.D.B., does not qualify for Supplemental Security Income (SSI) benefits. The district court affirmed the Cоmmissioner‘s decision. Exercising jurisdiction pursuant to
J.D.B. allegedly suffers from attention deficit disorder with hyperactivity (“ADHD“), a learning disorder, depressive disorder, and behavioral prоblems. Aplt. Br. at 8. The Commissioner denied, both initially and on reconsideration, the application for SSI benefits Ms. Bledsoe filed on his behalf. She then obtained a hearing before an administrative law judge (ALJ). The ALJ concluded that although J.D.B.‘s learning disorder and behavioral problems were “severe” impairments, see
“We review the Commissioner‘s decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).
On appeal, Ms. Bledsoe raises three issues for our consideration: (1) the ALJ incorrectly failed to find that J.D.B. met or equaled a listed impairment; (2) the ALJ failed to properly consider all of the evidence of record in concluding that J.D.B.‘s impairments did not functionally equal a listing; and (3) the ALJ failеd to perform the required credibility determination. We begin with the third issue, which requires reversal.
I. Credibility Analysis
Both J.D.B. and his mother, Ms. Bledsoe, testified at the ALJ hearing. When the child himself is unable to adequаtely describe his symptoms, the regulations permit testimony concerning his symptoms by the person most familiar with the child, such as a parent.
In his decision, the ALJ said nothing at all abоut J.D.B.‘s testimony. This error, in itself, may not be fatal to his decision. J.D.B.‘s testimony was not particularly detailed or enlightening concerning his condition, Aplt.App., Vol. II at 36-41, and as we have nоted, the ALJ may turn to testimony from a parent or other person familiar with the child‘s condition. See
The ALJ made no credibility findings whatsoever about Ms. Bledsoe‘s testimony. Although he did say he considered “information from other sources, such as school teachers, family members, оr friends” and “statements from the claimant‘s parent(s) or other caregivers,” Aplt.App., Vol. 2 at 20, this boilerplate assertion falls far short of the required specific credibility finding. The ALJ did provide a narrative summary of Ms. Bledsoe‘s testimony, as follows:
[J.D.B.] is in school in two learning disabled classes. He does not do the work in class, acts out in class and his gradеs are worse this year. She took her son to a psychologist, Dr. Snider, for evaluation. Her son has behavior problems in school with fighting and disruptive behavior. At home, he has imрroved. He gets along okay with his siblings, gets along with some kids, but not other. [sic] He does not do housework but does his chores, gets along with most kids, is athletic, and is able to groom himself and сare for his own personal needs. He is otherwise in good health.
Id. at 21.
This summary includes no credibility findings. It is only a narrative description of the testimony. This is insufficient to fulfill the ALJ‘s duty to perform a credibility analysis.
The Commissioner contends that the ALJ did perform a credibility analysis because, elsewhere in his decision, he cited evidence that contradicted thе limitations Ms. Bledsoe described. From the ALJ‘s reasoning, she argues, we can deduce that the ALJ “found that J.D.B.‘s and [Ms.] Bledsoe‘s statements regarding the severity of J.D.B.‘s limitations were not crеdible.” Aplee Br. at 31. But this is a post hoc attempt to supply credibility findings the ALJ never made. If the ALJ in fact rejected Ms. Bledsoe‘s testimony in favor of other evidence, it was his duty to make specific findings that showed how he arrived at his conclusion. See Briggs, 248 F.3d at 1239. This, he failed to do.
Alternatively, the Commissioner argues that we should dismiss any error as harmless, because Ms. Bledsoe‘s tеstimony does not show that J.D.B. is disabled. We may excuse the lack of an express finding if “we could confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter [in favor of the claimant].” Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). But that standard for harmless error is not met in this case. For example, the ALJ did not mentiоn or evaluate specific, relevant testimony from Ms. Bledsoe about J.D.B.‘s grades, showing that even with remedial classes, he was failing about half of his classes. See id. at 49 (“He has two C‘s, one A ... and the rest are F‘s.“). A reasonable administra-
The ALJ failed to analyze Ms. Bledsoe‘s credibility and to make proper credibility findings concerning her testimony. We therefore reverse and remand for a proper credibility analysis.
II. Listing Equivalence Issues
The ALJ concluded that J.D.B.‘s impairments did not meet, medically equal, or functionally equal a listed impairment. J.D.B. challenges his conclusions on each of these points. The centerpiece of J.D.B.‘s argumеnt is found in his assertion that the ALJ failed to properly analyze the medical opinion of consulting psychologist Brian R. Snider, Ph.D. J.D.B. argues that Dr. Snider‘s opinion, together with the other evidence in the record, demonstrates that he met, medically equaled, or functionally equaled a listed impairment. He contends that the ALJ‘s finding to the contrary is unsupported by substantial evidence.
Although the ALJ provided a narrative summary of Dr. Snider‘s report, he did not expressly state what weight he gave Dr. Snider‘s opinion. Nor did he evaluate the оpinion using the appropriate factors. See Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (“[A]n examining ... medical-source opinion may be dismissed or discounted, of course, but that must be based on an evaluation of all of the factors set out in the cited regulations and the ALJ must provide specific, legitimate reasons for rejecting it.” (internal quotation marks omitted));
Although the ALJ‘s failure to adequately discuss a physician‘s opinion can be harmless, see Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161-65 (10th Cir. 2012), in light of our remand for a proper credibility finding we discern no reason to engage in a harmless error analysis here. On remand, in addition to performing a proper credibility analysis, the ALJ should properly evaluate Dr. Snider‘s opinion using the appropriatе standards. See
III. Conclusion
The district court‘s Opinion and Order is reversed, and the case is remanded to the district court with instructions to remand to the Commissioner for further proceedings in accordance with this order and judgment.