A Young Sallow-Skinned Man Wearing A Jean Jacket, Leaning Forward In A Chair Across A Coffee Table From A Doctor In A White Coat Holding A Clipboard

Feb. 29, 2024 – A Social Security claimant failed to meet his burden to prove that he was disabled without interruption before he turned 22 because he provided no corroborating evidence for gaps in treatment, the U.S. Court of Appeals for the Seventh Circuit has held in Hess v. O’Malley, No. 22-2694 (Feb. 7, 2024)

At the age of eight, Todd Hess was diagnosed with attention deficit disorder (ADD), dyslexia, and depression. When Hess was 13, he began suffering from panic attacks.

In high school, Hess continued to suffer from depression and anxiety, as well as obsessive-compulsive disorder (OCD). Dr. Mark Moffett diagnosed Hess with partial panic disorder and OCD when Hess was 17.

After High School

After graduating from high school, Hess attended a trade school for a time.

Hess saw Dr. Moffett again when he was 21, in 1998. It had been two years since his last visit to Moffett.

Moffett determined that Hess no longer qualified for a diagnosis of major depression. But Moffett also concluded that Hess was impaired by OCD symptoms.

Hess next saw Moffett in November 2001. Hess told Moffett his symptoms had gotten much worse.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Over the next twelve months, Hess saw Moffett several more times.

Hess next saw Moffett in April 2004. In addition to anxiety and germaphobia, Hess told Moffett he was suffering from bulimia.

Hess and his mother testified later that Hess didn’t go to the doctor more frequently because he didn’t have health insurance and couldn’t afford to pay out-of-pocket.

Job as Sales Rep

When Hess was in his 20s, he worked as an independent salesman. The work required frequent travel.

In 2007, Hess had a major panic attack. Hess saw Dr. Richard Stafford and told Stafford that his OCD was not interfering with his life.

Hess continued to see Stafford. In addition to panic attacks, Hess told Stafford that he suffered from insomnia, depression, stress linked to his marriage, and occasional panic attacks.

Applies for SSI

The parties agreed that Hess has been disabled since June 2009.

Hess applied for supplemental security income (SSI) disability insurance benefits on his own, and disabled child benefits on his mother’s accounts.

The Social Security Administration (SSA) approved Hess’ SSI claim but denied the other two claims.

In October 2020, an administrative law judge (ALJ) ruled that while Hess had a severe impairment, he was not under a disability at any time between when he turned 22 on Aug. 8, 1999, to June 8, 2009, based on the following: 1) Hess did not have an impairment listed under the SSA guidelines; and 2) there were jobs existing in significant numbers in the national economy that Hess could have performed.

Hess appealed to the U.S. District Court for the Western District of Wisconsin, but the district court affirmed the decision.

Hess appealed.

Attacks ALJ’s Findings

Judge Kenneth Ripple began his opinion for a three-judge panel by explaining that under amendments to the Social Security Act, disabled adult children of disabled adults are entitled to benefits on the wage earner’s Social Security Account – as long the adult child shows that he or she had a disability that continued without interruption from before his or her 22nd birthday to the date of the application for benefits.

Hess argued that the ALJ failed to incorporate into the decision the findings of Dr. Orsoz, who examined his medical records at the first stage of the claim process.

Orsoz found that Hess was “moderately limited” in his ability to:

  • pay attention and concentrate for long periods;

  • be punctual and keep to a work schedule; and

  • finish the workday and workweek without interruptions caused by his symptoms.

Ripple concluded that the ALJ had incorporated Orsoz’s findings because he’d found that Hess could only perform jobs without a “fast-paced production quota or rate.”

Regarding Orsoz’s findings about Hess’ ability to pay attention and concentrate, Judge Ripple concluded those findings were “vague and not necessarily helpful.”

Ripple also noted that under Seventh Circuit caselaw, and ALJ has a duty to “develop a full and fair record” in social security cases but the duty is lower claimant when the claimant is represented by an attorney, as Hess was.

“The vague and tentative nature of Dr. Orsoz’s statements simply reflect the difficulty of opining on a period spanning 16 years, given a record with so many significant gaps,” Judge Ripple wrote.

Discounted Symptoms?

Hess also argued that the ALJ had erred by discounting his subjective symptoms.

Judge Ripple explained that, under Seventh Circuit caselaw, a court may overturn an ALJ’s evaluation of a social security claimant’s subjective symptoms only if it’s “patently wrong, which means that the decision lacks any explanation or support.”

Ripple concluded that it was reasonable for the ALJ to have concluded that Hess’s description of his symptoms between 1999 and 2009 were not wholly consistent with the medical evidence.

“The treatment notes of many of Mr. Hess’s physicians … support the conclusion that his alleged impairments were not disabling,” Judge Ripple wrote. “The ALJ also reasonably relied on the extensive travel that Mr. Hess did for his work.”

Treatment Gaps

Hess also argued that the ALJ violated Social Security Ruling 16-3p by relying on the gaps in his treatment.

That ruling allows an ALJ to discredit a claimant’s subjective complaints regarding the intensity and persistence of symptoms “if the frequency or extent of the treatment sought … is not comparable with the degree of the … subjective complaints.”

But Judge Ripple concluded that for the ALJ, the gaps in Hess’s treatment did no more than highlight Hess’s failure to meet his burden on proving he was disabled for a long period before his 22nd birthday.

Ripple pointed out that Hess had put on no evidence to corroborate the seriousness of his symptoms during the gaps in his medical record.

“There were no statements from lay witnesses, such as co-workers, trade school instructors, friends, or family members other than his mother,” Judge Ripple wrote.