decision denying Claimant continuation of
benefits on March 31, 2000. R. 18-26.
Bond filed a request for review of the ALJ's decision by the
Commissioner's Appeal Council, which was denied, leaving the ALJ's
decision the final decision of the Commissioner. R. 11-13. Bond then
filed a request for judicial review pursuant to 42 U.S.C. § 405(g),
which is currently before this Court.
III. STANDARD OF REVIEW
Judicial review of a Commissioner's final decision is governed by
42 U.S.C. § 405(g), which provides that the "findings of the
Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive." An ALJ's decision becomes the
Commissioner's final decision if the Appeals Council denies a request for
review. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir. 1993). Under such
circumstances, the decision reviewed by the district court is the
decision of the ALJ. Eads v. Secretary of the Dept. of Health & Human
Serv., 983 F.2d 815, 816 (7th Cir. 1993). A reviewing court may not
decide facts anew, reweigh the evidence, or substitute its own judgment
for that of the Commissioner. Knight v. Chater, 55 F.3d 309, 313 (7th
Judicial review is limited to determining whether the ALJ applied the
correct legal standards in reaching its decision and whether there is
substantial evidence in the record to support his findings. Schoenfeld
v. Apfel, 237 F.3d 788, 792 (7th Cir. 2001); 42 U.S.C. § 405(g).
Substantial evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971). The court may reverse the
Commissioner's decision only if the evidence "compels" reversal, not
merely because the evidence supports a contrary decision. INS v.
Zacarias, 502 U.S. 478, 481, n. 1 (1992). The Act gives a court the power
to enter a judgment "affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the cause
for a rehearing." 42 U.S.C. § 405(g).
A. ESTABLISHING A DISABILITY.
On August 22, 1996, Congress enacted the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 ("PRWORA"), which amended the
statutory standard for children seeking SSI benefits based on
disability. See § 211(a) of Pub. L. 104-193, 110 Stat. 2105, 2188-89
(codified at 42 U.S.C. § 1382c(a)(3)(C)). Prior to enactment of Pub.
L. 104-193, a child was considered disabled if he or she had a medically
determinable physical or mental impairment that met the statutory
duration requirement and was "of comparable severity" to an impairment
that would disable an adult. 42 U.S.C. § 1382c(a)(3)(A) (1994);
20 C.F.R. § 416.924 (1996). The PRWORA revised this standard to one
under which a child seeking SSI benefits based, on disability will be
found disabled if he or she has a medically determinable impairment that
meets the statutory duration requirement and results in "marked and
severe functional limitations." 42 U.S.C. § 1382c(a)(3)(C).
The PRWORA made other changes to the disability determination process
for children. These changes include the elimination of the Individualized
Functional Assessment under the Social Security Administration's prior
rules, see 20 C.F.R. § 416.924d, 416.924e (1996), and the deletion of
references to "maladaptive behavior" from specified sections of the SSA's
Listing of Impairments contained in 20 C.F.R. Part 404, Subpart P,
Appendix 1. See
§§ 211(b)(1) and (b)(2) of Pub. L. 104-193, 110 Stat.
at 2189. The PRWORA requires a greater showing from an SSI disability
claimant because the new standard and its accompanying regulations are
more stringent. Scott v. Barnhart, 297 F.3d 589, 594 (7th Cir. 2002). The
PRWORA directed the Agency to redetermine, within one year after the date
of enactment, the eligibility of individuals who were eligible for SSI
based on disability under the old standard.
B. THREE-STEP PROCESS.
The Act provides a sequential three-step process to determine whether
the juvenile claimant has established a "disability."
20 C.F.R. § 416.924 (2001). The first step is to determine whether
the claimant is engaged in substantial gainful activity.
20 C.F.R. § 416.924(b). If so, the inquiry stops and the claimant is
considered not disabled, and if not, the inquiry proceeds. The second
step is to determine whether claimant has a severe impairment or
combination of impairments that cause more than a minimal functional
limitation. 20 C.F.R. § 416.924(c). If the claimant has more than a
minimum functional limitation, the inquiry proceeds. The final step
involves a determination of whether the claimant has a condition that
meets, medically equals, or functionally equals an impairment listed in
20 C.F.R. Part 404, Subpt. P, App. 1 (the "Listings").
20 C.F.R. § 416.924(d).
If the ALJ decides, as he did in this case, that a claimant's
impairment does not meet or exceed the Listings, then he must view the
record as a whole in order to determine whether the impairment is
"functionally equal" to any listed impairment. 20 C.F.R. § 416.926a.
Any functional limitations resulting from the claimant's impairment or
impairments are compared with the disabling functional limitations of any
listed impairment. 20 C.F.R. § 416.926a(a) and (b). An impairment is
functionally equivalent to a listed impairment if it results in "`marked'
limitations in two domains of functioning or an `extreme' limitation in
one domain." 20 C.F.R. § 416.926a(a). There are six domains of
functioning: (1) acquiring and using information; (2) attending and
completing tasks; (3) interacting and relating with others; (4) moving
about and manipulating objects; (5) caring for oneself; and (6) health
and physical well-being. 20 C.F.R. § 416.926a(b)-(1)(i)-(vi). The
domains were worded slightly differently in 2000 when the ALJ decided
C. THE ALJ DECISION.
ALJ Shinitsky applied the sequential three-part test. First, the ALJ
found that Harris was not engaged in substantial gainful activity: she
was attending school and not working for profit. R. 25. He also found
that Harris has the impairments of juvenile diabetes Type I,
ketoacidosis, hypoglycemia, and hyperglycemia, all of which are severe.
Id. Applying the third part of the test, ALJ Shinitzky found that
Harris's diabetes did not meet the requirements of Listing 109.08B or
109.12, which address the frequency of hypoglycemia necessary to qualify
for SSI under the third test.*fn2 Id. He came to this conclusion
by discussing and adopting the opinion of Dr. Schwartz, the medical expert
("ME"). R.23. After examining the Claimant's records, Dr. Schwartz opined
that Claimant's diabetes did not meet the requirements of the listings.
R. 38. Claimant's treating physician, Dr. Richard Levy, was not present
at either hearing and did not opine whether Claimant met the listings.
The ALJ then determined that the Claimant's impairments are not
functionally equivalent to any of the listings, indicating that
Claimant's functional limitations are less than "marked." R. 23. The ALJ
found that Claimant maintains a broad range of activities of daily
living, including social activities, academic accomplishments, and
interests in sports. R.25.
The Claimant raises three arguments on appeal. First, she contends that
she met the listing by reason of recurrent episodes of hypoglycemia.
Second, she contends the ALJ failed to consider all the evidence or
articulate the grounds for decision. Finally, she asserts the Appeals
Council erred in denying review.
D. THERE IS SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTING THE ALJ'S
DECISION TO DENY BENEFITS.
1. The Claimant Did Not Meet the Listing in 109.12 or 109.08B.
The ALJ considered all of the evidence of record and reasonably
concluded that, while Claimant's diabetes was severe, it did not meet the
criteria of any listed impairment. R.25. The ALJ specifically considered
listing 109.08B, and reasonably adopted Dr. Schwartz's testimony that
Claimant's hypoglycemic episodes were not of the frequency and severity
contemplated by the listing, which would establish presumptive
disability. R. 22-23. Dr. Schwartz's testimony provided substantial
evidence supporting the ALJ's conclusion that Claimant did not have
listing-level diabetes. See 20 C.F.R. § 416.927(f)(2) (ALJs consider
the opinions of medical experts consulted to determine the nature and
severity of impairments); see also, Anderson v. Bowen, 868 F.2d 921, 925
(7th Cir. 1989) (uncontradicted consulting physicians' conclusions that
claimant did not meet listings constitutes substantial evidence in
support of conclusion).
There is no evidence in the record to suggest that Claimant could meet
listing 109.12, because the Claimant does not claim to have suffered
convulsions or a coma, as 109.12 requires. The Claimant may meet the
listing of 109.08B, however, by having diabetes mellitus and "[r]ecent,
recurrent episodes of hypoglycemia." The listing does not give a
numerical blood sugar reading below which a claimant will be considered
to have hypoglycemia, nor does it define "recurrent."
Claimant argues that the ALJ improperly concluded she did not meet
listing 109.08B. Claimant cites no medical opinion, but argues that the
definition of hypoglycemia, taken from a medical dictionary, undermines
the medical expert's conclusion that Claimant did not meet a listing.
Claimant's contention is contradicted by the medical opinion of Dr.
Schwartz, the medical expert, who testified at two separate hearings and
answered interrogatories. R. 37-38, 40, 42, 91. Moreover, Claimant's
contention is further undermined by the opinion of Dr. Gwendolyn White,
the state agency medical consultant
who reviewed the medical evidence and
concluded Claimant did not have an impairment of listing level severity.
R. 423-27. See 20 C.F.R. § 416.927(f)(2)(i) (State agency medical
consultants are "highly qualified physicians . . . who are also experts
in Social Security disability evaluation.")
Claimant cites her own home blood sugar readings and argues that they
demonstrate that she met the requirements of listing 109.08B for
hypoglycemia. In Claimant's opinion, these readings alone establish that
she met the requirements of that listing. However, the results of
Claimant's home blood sugar monitoring alone are not adequate to
establish an impairment of listing level severity. Her reliance on her
home blood sugar monitoring and lack of corroborating medical evidence is
undermined by Dr. Schwartz's testimony that Claimant's daily blood sugar
readings were "not that accurate" R. 45. An ALJ may not "play doctor."
Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1996). He must instead rely
on those with medical expertise to interpret the validity of testing
results. His reliance on the ME to interpret this home testing data was
not misplaced. While he acknowledged that Claimant had occasional
readings below 50, he testified that blood sugar readings below 60 were
not problematic since people typically have blood sugars in the 50's
without problems. R. 49-50. A blood sugar reading of 56 did not
necessarily mean anything more than the person was hungry. R. 50.
Claimant's home blood sugar readings do not satisfy the listing because
they are not "diagnostic laboratory data" that is "provided by the
testing laboratory," and they contain no information as to the "normal
values for that test." 20 C.F.R. Part 404, Subpt. P. App. 1, Rule
109.00C. Thus, Plaintiff's home blood sugar readings are insufficient to
establish she met the requirements of listing 109.08B.
In order to meet an impairment under listing 109.00, the listing which
contains juvenile diabetes, Claimant bore the burden of proving that her
diabetes had persisted or had been expected to persist despite prescribed
therapy for a continuous period of 12 months. 20 C.F.R. Part 404, Subpt.
P, App. 1, Rule 109.00. Further, in order to meet listing 109.08B,
Claimant was required to prove that her diabetes was documented as
required under section 109.00C. 109.00C contains the documentation
requirements for meeting any impairment listed under 109.00 and includes
the following: description of characteristic history, physical findings
and diagnostic laboratory data. Id. Here, even if Claimant's home blood
sugar readings were accurate, Plaintiff has failed to show or demonstrate
that she had the characteristic history or diagnostic laboratory data
necessary to meet the listing.
Under listing 109.00C, diagnostic laboratory data must be included in
the record for Claimant to meet her burden of proof:
Documentation. Description of characteristic history,
physical findings, and diagnostic laboratory data must
be included. Results of laboratory tests will be
considered abnormal if outside the normal range or
greater than two standard deviations from the mean of
the testing laboratory. Reports in the file should
contain the information provided by the testing
laboratory as to their normal values for that test.
20 C.F.R. Part 404, Subpt. P, App. 1. Claimant has produced only one
hospital measurement of hypoglycemia. On December 10, 1997, St. Bernard
Hospital measured Harris's blood sugar at 31. R. 514. Nowhere does she
present the normal values for the test, nor do we know if the values in
her blood sugar are two or more standard deviations from the norm.
Claimant notes that she had three occasions where she required
emergency room treatment for hypoglycemia. However, Dr. Schwartz
testified that Claimant's diabetes was controlled, at least since April
1998. R. 90. Claimant made a visit to a hospital emergency room on April
22, 1998, where she was diagnosed with hypoglycemia, but no blood sugar
reading is found in the documentation of that visit. R. 595. The ME
states that "in 1997 it is clear that [Claimant] had two severe episodes
of hypoglycemia and appears to have had another one at least sufficient
enough to bring her to a hospital in 1998." R. 97. These visits to the
hospital may be considered not "recent" enough to meet the Listings.
Dr. Schwartz's testimony is supported by Claimant's own admission that
she didn't "feel that because of my diabetes I need special attention."
R. 83. Indeed, at her February 1999 hearing, Claimant testified that the
last time she had a problem with low blood sugar, where she had to either
leave the classroom, see the nurse, or even drink orange juice during
class, occurred "about two years ago." R. 81. Claimant was unable to
recall the last time she told her teacher she was not feeling well, and
she admitted she did not have a situation in her classroom, between April
1998 and her February 1999 hearing, where she felt she needed some
attention for her condition. R. 83. Dr. Levy also reported no limitations
and recommended no changes in Claimant's lifestyle as a result of
diabetes. R. 332, 348-51. This evidence further undermines her contention
that she met the listing for diabetes and provides further support for
Dr. Schwartz's testimony.
2. The ALJ Properly Articulated His Findings.
The duty of this Court is not to reweigh the evidence presented, but is
instead limited to finding whether the ALJ applied the correct legal
standard and whether there is substantial evidence in the record to
support his finding. Schoenfeld v. Apfel, 237 F.3d 788, 792 (7th Cir.
The ALJ must examine evidence favoring both the Claimant and the
Commissioner in these cases. Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir.
1986). The ALJ considered Dr. Schwartz's uncontradicted testimony in
making his decision. The ALJ must write his decision so that a reviewing
court may decide whether or not he considered all the avenues of
evidence, as Bauzo requires. Zurawski v. Halter, 245 F.3d 881, 888 (7th
Cir. 2001). Claimant urges that since the ALJ did not explain why he was
not giving the home tests enough weight to balance the opinion of the
ME, that he did not meet the Zurawski standard. The ALJ summarized the
evidence and adopted the ME's medical opinion in his holding. The ALJ's
decision represents a well-reasoned discussion of the evidence supported
by the evidence and the opinion of the ME.
3. The Appeals Council Did Not Err in Finding That the Additional
Evidence Submitted Was Insufficient to Change the ALJ's Decision.
The Appeals Council will only review an ALJ decision based on new
evidence "if it finds that the administrative law judge's action,
findings, or conclusion is contrary to the weight of the evidence
currently of record."*fn3 The Claimant in
this case submitted
twenty-eight pages of numbers, written by handwriting as additional
evidence. The Appeals Council considered the request for review. R.
11-13. After evaluating the entire record, it concluded "that neither the
contentions nor the additional evidence provides a basis for changing the
Administrative Law Judge's decision." R. 11. This Court agrees that the
new evidence did not require the Appeals Council to modify the ALJ's
This record supports the ALJ's determination that Claimant is not
disabled. This conclusion is supported by the medical evidence of
record, the testimony of the ME, and Claimant's own testimony. As a
result, Claimant's motion for summary judgment is denied and Defendant's
motion for summary judgment is granted and the Commissioner's decision
finding Claimant not disabled is affirmed.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to hearing before the Court. The
issues have been heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that, Claimant's motion for summary
judgment is denied and Defendant's motion for summary judgment is granted
and the Commissioner's decision finding Claimant not disabled is