United States District Court, N.D. Illinois, Eastern Division
January 7, 2005.
JOYCE HARDEN, for SHARKIE HARDEN Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Joyce Harden ("Claimant"), on behalf of her child
Sharkie Harden ("Sharkie"), challenges the decision of Defendant
Jo Anne B. Barnhart, Commissioner of Social Security
("Commissioner"), claiming that her denial of Supplemental
Security Income ("SSI") should be reversed or remanded because
the decision contains errors of law and is not supported by
substantial evidence. This case comes before this Court on the
parties' cross-motions for summary judgment. For the reasons that
follow, this Court affirms the Commissioner's decision, grants
the Commissioner's motion for summary judgment and denies the
Claimant's motion for summary judgment. I. BACKGROUND FACTS
A. PROCEDURAL HISTORY
Claimant filed an application for SSI on November 16, 1993. R.
17, 72. The Claimant was found to be disabled and eligible for
benefits as of November 19, 1993. Id. Pursuant to P.L. 104-193,
effective August 22, 1999, Claimant's disability was found to
have ceased. R. 17, 76. In March 2000, the state agency affirmed
the cessation of the Claimant's benefits, and the Claimant
requested a hearing before an administrative law judge ("ALJ").
R. 76. On July 20, 2001, a hearing was held before ALJ Edward R.
Gustafson, at which Claimant was represented by counsel. R.
25-71. Claimant and medical expert, Dr. Howard Lee, M.D.,
testified at the hearing. Id. On February 14, 2002, the ALJ
issued a final decision finding Sharkie not disabled. R. 14-21.
Claimant's request for review was denied by the Appeals Council.
R. 5-8. Claimant filed a timely complaint with this Court for
review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). The
parties have consented to this Court's jurisdiction to decide
this case pursuant to 28 U.S.C. § 636(c)(1).
B. HEARING TESTIMONY JULY 20, 2001
1. Claimant's Testimony
Sharkie was 15 years old and in ninth grade at the time of the
hearing. R. 28-29. Sharkie lives at home with Claimant and three
other siblings. R. 34. Sharkie has few friends and spends most of
her time at home. R. 46.
Sharkie has struggled with her grades and her ability to learn
throughout grammar school and into middle school. R. 31. She has problems with
teachers and receives extra tutoring. R. 30. Sharkie is a special
education student who receives extra academic help in reading and
in mathematics. R. 31. At the time of the hearing, Sharkie was
operating three years behind grade level. R. 31-32. Despite her
troubles, including both academic as well as emotional problems,
Sharkie straightened out a bit in eighth grade. R. 36. Sharkie
graduated eighth grade and entered high school in the fall of
2000. R. 39.
Sharkie failed her first year of high school and she was
enrolled in summer school at the time of the hearing. R. 39. In
her first year of high school, the school created a new
Individualized Education Plan ("IEP") increasing her minutes in
special education with the hopes of improving her performance. R.
Due to her problems in her first year of high school, Sharkie
received additional help at both the Chicago Department of Public
Health and at Mercy Hospital. R. 44. At the Chicago Department of
Mental Health, Sharkie underwent counseling from June 2000
through January 2001. R. 134-150. In June 2001, Sharkie underwent
a mental health assessment at Mercy Hospital. R. 193. In August
2001, Sharkie underwent a psychiatric evaluation at Mercy
Hospital. R. 199.
2. Howard Lee, M.D. Medical Expert
At the February 14, 2001 hearing, Dr. Howard Lee examined the
Claimant regarding Sharkie's learning disabilities. Dr. Lee
questioned Claimant in several areas, and according to the ALJ,
the Claimant seemed to take Dr. Lee's questioning as "accusatory
of her conduct as a mother." R. 19. Therefore, the ALJ stopped the hearing prior
to completion because the Claimant became too emotional. R.
69-70. Because the examination by Dr. Lee was incomplete, the ALJ
sent Sharkie out for a psychological exam. R. 69-70.
C. SCHOOL AND MEDICAL EVIDENCE
1. Cynthia Turner School Psychologist
On April 6, 1994, when Sharkie was in second grade and enrolled
in regular education classes, school psychologist Cynthia Turner
performed a psychological evaluation. R. 226. Turner noted that
Sharkie had "slow average cognitive development" with adequate
math skills, but reading skills below grade placement. R. 227.
Turner also noted emotional immaturity and insecurity. Id.
On June 14, 1994, Claimant and Sharkie attended a
multidisciplinary conference for the Chicago Public School's
Department of Special Education. R. 108. It was determined that
regular classroom placement was not meeting Sharkie's needs due
to moderate learning disabilities. R. 116. Sharkie's deficits
were in receptive language, language concept formation and
spatial memory. R. 108. However, a speech/language evaluation
revealed no significant inarticulation pattern and
receptive/expressive language skills were within normal limits,
with the exception of expressive vocabulary, which was below
average. R. 109. Sharkie's school behavior was reported to be
acceptable. Id. Sharkie's poor attendance could have impacted
her performance. Id. Turner determined that Sharkie would
remain in regular education classes and receive special education
and related services in another setting for less than 50% of each day. R. 115. Sharkie received these special
education services due to her learning disabilities from the
beginning of the next school year, 1995, through 1999. R.
2. Janice A. Nicholson, M.A. School Psychologist.
In May 2000, in a triennial evaluation for the Chicago Public
Schools, Sharkie was evaluated by Janice A. Nicholson, M.A.,
School Psychologist. R. 325-328. Sharkie was in eighth grade at
the time. Nicholson noted that current testing put Sharkie's
cognitive functioning and intellectual capabilities to be in the
"Borderline" or "Slow-learner range." R. 327. Nicholson noted
that while Sharkie's non-verbal skills were in the average range,
her verbal ability was below average. R. 328. Nicholson also
noted that the cumulative records indicated Sharkie had a high
rate of tardiness and transience, being enrolled in five
different schools. R. 325.
During the testing, Nicholson noted that Sharkie presented as a
very friendly and compliant child who appeared comfortable with
testing procedures. R. 327. Nicholson also noted that teachers
indicated Sharkie put forth adequate effort in class. R. 325. No
significant behavior concerns were indicated, as Sharkie was
described as a cheerful student who maintains good peer
relations. Id. She recommended continued individualized
instruction in a small classroom setting to remediate information
processing deficits. R. 328.
3. Quinella Lewis, LPHA Mental Health Counselor
In June 2000, Sharkie began counseling with Quinella Lewis at
the Chicago Department of Public Health. R. 134-150. She attended monthly
sessions from June, 2000 to January, 2001. Id. A comprehensive
Mental Health Assessment was performed on Sharkie. R. 134-142.
Sharkie was alert, oriented and talkative. R. 141. She denied any
suicidal or homicidal thoughts or tendencies. R. 134-142. Sharkie
discussed a fear of men, notably her step-father, who she claims
tries to rule her life. R. 138. Sharkie exhibited a longing for
her real father, who she had not seen for four years. Sharkie was
assessed with a risk indicator for depression, a moderate level
of anxiety, and an average motivation to participate in
treatment. R. 142.
4. Gwendolyn Baker Learning Disabilities Teacher
On April 5, 2001, Gwendolyn Baker, Learning Disabilities
Teacher at Dunbar High School completed a School Activities
Questionnaire assessing Sharkie's performance and needs. R. 155.
She reported that Sharkie was functioning in the ninth grade at
Dunbar. She has average performance in attention span,
concentration, and on-task behavior. Baker noted that Sharkie had
the ability to work independently and to respond appropriately to
a change of routine in classroom environment. No problems were
noted in Sharkie's fine and gross motor skills. Id.
Baker reported appropriate behavior towards peers and teachers
with occasional mild mood swings. While Sharkie tended to talk
fast, her communication skills were not an issue as she would
slow down when reminded to do so. Id. 5. Nicole Sumida, M.S.W. Social Worker
On June 14, 2001, Sharkie underwent a Mental Health Assessment
at Mercy Hospital with Nicole Sumida, M.S.W.R. 193-198. Sumida
observed that Sharkie was neatly dressed and well groomed. R.
195. Sharkie appeared anxious and irritable and her mood shifted
rapidly throughout the interview. Id. Sharkie was overactive,
anxious, irritable and distracted. Id. Sharkie's speech and
language skills were age appropriate, and her thought process was
concrete, though distracted. Id.
Sumida diagnosed Sharkie with an adjustment disorder, with
mixed disturbance of emotions and conduct, and oppositional
defiant disorder. R. 198. Sumida recommended a psychiatric
evaluation to determine the need for medication to treat the
anxiety, depressive symptoms, and to explore thought
6. Dr. William N. Hilger, Jr., Ph.D. Consultative
Following the hearing before the ALJ, Sharkie underwent
psychological testing with Dr. William N. Hilger, Jr., Ph.D.R.
199-203. Sharkie displayed a very negative attitude. R. 199. She
refused to sit down, would not tell Dr. Hilger her name, age,
birth date, or other identifying information. She acted as if she
could not hear, though as the evaluation proceeded Dr. Hilger
noted that she had no hearing difficulties, she was simply being
oppositional and resistant. She claimed that it was Tuesday when
it was Thursday, and when Dr. Hilger asked her if she knew why
she had come in for the appointment, she said it was to get some
donuts. Id. When Dr. Hilger attempted to have Sharkie perform tests during
this initial meeting, Sharkie acted as if she had no idea how to
perform simple tasks on the WISC-II test. Whenever he attempted
to encourage her to put forth more effort, Sharkie would become
more sullen and negativistic. Therefore, Dr. Hilger concluded
that the test results of the meeting on August 30, 2001 did not
provide a valid estimate of Sharkie's intellectual functioning.
Because Dr. Hilger felt that Sharkie was not cooperating, and
that Claimant was making no effort to help her child cooperate,
he called the ALJ to explain to both of them that cooperation was
essential. The ALJ was called, and both Claimant and Sharkie said
they would cooperate in a future visit. R. 200.
However, upon reconvening on September 17, 2001, after an
initial showing of good effort on the WISC-II coding subtest (in
which her score showed a high mental ability), it became clear to
Dr. Hilger that Sharkie intended to put forth minimal and poor
effort. Id. As the session continued, she gave up easily on
tasks and had a poor attitude. Id. Sharkie made it very clear
she did not want to be there. Id. It was Dr. Hilger's
impression that Sharkie intended to present herself as being
quite impaired, incapable, and was cleverly being very selective
in her performance and responsiveness to the items. R. 205.
Based on the two meetings with Sharkie, Dr. Hilger diagnosed
her with Oppositional-Defiant to undersocialized conduct disorder
and probable low average intelligence, with no serious health
problems. Id. Dr. Hilger concluded that Sharkie "likely has
higher mental potential, likely extending into at least a low
average range if not higher, to perform and maintain age appropriate activities involving understanding and
memory, sustained concentration and persistence, social
interaction, and adaptation, if she were properly motivated and
willing to behave in a responsible, mature manner. She attempted
to present herself as being far more disturbed and incapable than
she may actually be, when she likely has at most mild learning
D. THE ALJ'S DECISION
The ALJ issued an unfavorable decision, finding Sharkie has not
been shown to have marked or extreme limitations in any of the
domains of functioning. R. 17-21. Based on these findings, the
ALJ determined that Sharkie was not under a "disability" and was
not eligible for SSI. Id.
The issue before the ALJ was whether the Claimant continued to
be eligible, pursuant to Section 1614(a)(3) of the Social
Security Act ("Act"), to receive SSI payments as a disabled
individual who has not yet attained age 18. R. 17. Section
1614(a)(3) of the Act provides that: "An individual under the age
of 18 shall be considered disabled for the purposes of this
subchapter if that individual has a medically determinable
physical or mental impairment, which results in marked and severe
functional limitations, and which can be expected to result in
death or which has lasted or can be expected to last for a
continuous period of not less than 12 months."
42 U.S.C. § 1382c(a)(3)C) (i).
The ALJ found that Sharkie was not disabled within the meaning
of the Act. The ALJ reviewed Claimant's testimony, the evidence
from education specialists, Sharkie's schools, social workers and
doctors. The ALJ placed heavy weight on the evidence provided by Sharkie's two sessions with Dr. Hilger. The discrepancy between
Sharkie's performance at the examinations and testing with Dr.
Hilger and her examination by the school psychologist the
previous year was seen by the ALJ as evidence that Sharkie was
being coached by the Claimant to perform poorly in front of Dr.
Hilger. R. 20. The school psychologist noted that Sharkie was "a
very friendly and compliant child who appeared comfortable with
testing procedures." R. 20, 327. Dr. Hilger noted Sharkie's poor
effort, lack of cooperation, and blatant malingering. R. 20,
The ALJ concluded that Sharkie has not been shown to have a
severe learning disability. R. 20. While her performance is
school has been below grade level, the ALJ credited this to other
factors in Sharkie's life, not mental and physical factors. Id.
The ALJ cited the fact that Sharkie moved from school to school
many times during her scholastic career as likely preventing her
from achieving much academic success, especially combined with
her low-average intelligence. Id. He concluded that none of the
domains apply to Sharkie in any marked degree. R. 21.
II. LEGAL STANDARDS
A. STANDARD OF REVIEW
The "findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive."
42 U.S.C. § 405(g). 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. Sec'y of the Dep't of Health & Human Servs., 983 F.2d 815,
816 (7th Cir. 1993).
Judicial review is limited to determining whether the ALJ
applied the correct legal standards in reaching his decision and
whether there is substantial evidence in the record to support
the findings. Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th
Cir. 1992). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). A
mere scintilla is not enough. Id. Even if there is adequate
evidence in the record to support the decision, the findings will
not be upheld if the "reasons given by the trier of fact do not
build an accurate and logical bridge between the evidence and the
result." Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).
A reviewing court must conduct a "critical review" of the
evidence before affirming the Commissioner's decision, Clifford
v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000), but does not
re-evaluate the facts, re-weigh the evidence, or substitute its
own judgment for that of the Social Security Administration.
Diaz, 55 F.3d at 305-06. The reviewing court has the power to
enter a judgment "affirming, modifying, or reversing the decision
of the [Commissioner], with or without remanding the cause for a
rehearing." 42 U.S.C. § 405(g).
B. DISABILITY STANDARD
Disability insurance benefits are available to claimants who
can establish "disability" under the terms of the Social Security
Act. Brewer v. Carter, 103 F.3d 1284, 1390 (7th Cir. 1997). Before 1996, a child was considered disabled if he or she
had an impairment of comparable severity to an impairment that
would disable an adult. 42 U.S.C. § 1382c(a)(3)(A) (1996)).
Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir. 1997). However,
in 1996 Congress passed the Personal Responsibility and Work
Opportunity Reconciliation Act, Pub.L. No. 104-193, which
revised the standard by which a child is considered disabled and
therefore eligible for SSI benefits. Under the new law the
comparable severity criterion was repealed and replaced with the
following definition: "an individual under the age of 18 shall be
considered disabled for the purposes of this subchapter if that
individual has a medically determinable physical or mental
impairment, which results in marked and severe functional
limitations, and which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i)
(1999)). This new standard requires a "more serious impairment
related limitation" than the previous standard. Nelson v.
Apfel, 131 F.3d 1228, 1235 (7th Cir. 1995).
Under the new standard, the Commissioner uses a three step
sequential evaluation to determine a childhood disability.
20 C.F.R. § 416.924. First, if the child is working, and the work is
substantial gainful activity, the Commissioner will find the
child not disabled. 20 C.F.R. § 416.924(b). Second, any medically
determinable impairment that the child has must be severe.
20 C.F.R. § 416.924(c). If the child does not have a medically
determinable impairment, or that impairment is a slight
abnormality that causes no more than minimal functional
limitations, the Commissioner will find the child not to be
disabled. Id. Third, the child's impairment must meet, medically equal, or functionally
equal the listings. 20 C.F.R. § 416.924(d).
The Commissioner will consider whether the functioning equals
the listings by looking at the information in the case record
about how a child's functioning is affected during all of the
child's activities. 20 C.F.R. § 416.926a(b). In order to
establish functional equivalence at step three, a child must have
a medically determinable impairment or combination of impairments
that result in "marked" limitations in at least two domains or an
"extreme" limitation in at least one. 20 C.F.R. § 416.926a(a).
"These domains are broad areas of functioning intended to capture
all of what a child can or cannot do." 20 C.F.R. § 416.926a(b).
The domains are: acquiring and using information; attending and
completing tasks; interacting and relating with others; moving
about and manipulating objects; caring for oneself; and health
and physical well being. 20 C.F.R. § 416.926a(b)(1). "The bulk of
20 C.F.R. § 416.926a is devoted to `general descriptions of each
domain' against which a claimant's functioning may be compared;
and so when the dust settles, the agency retains substantial
discretion." Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir.
Claimants raises two issues for review: (1) whether the ALJ
made findings contrary to law by not applying the medical
improvement standard, and (2) whether the ALJ improperly rejected
treating sources and improperly relied on the opinion of the
medical expert and a consulting psychologist. The Court will
address each issue in turn. A. THE ALJ PROPERLY APPLIED THE NEW CRITERIA INSTEAD OF THE
MEDICAL IMPROVEMENT STANDARD.
Claimant argues that the ALJ applied the improper standard in
this case by using the new criteria rather than the medical
improvement standard. Also, Claimant argues that the fact that
the ALJ referred to the medical improvement standard in his
decision gives credence to the fact that it is the correct
standard to be used.
First, the administrative posture of this case called for the
ALJ to employ the new standards of review when determining
whether a child has a disability as defined by the Social
Security Act. Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir.
2003). As discussed above, with the passing of P.L. 104-193, the
standard changed by which a child is considered disabled and
therefore eligible for SSI benefits. In this case, Sharkie was
found disabled and eligible for benefits as of November 16, 1993,
based on mental retardation. R. 17. However, pursuant to P.L.
104-193, Sharkie's disability was found to have ceased effective
August 22, 1999. Id. The issue in front of the ALJ in this case
was whether Sharkie's disability had ceased, and in order to
determine that, the ALJ was bound to follow the procedures
instituted by P.L. 104-193.
When Congress changed the standards for assessing childhood
disability, it instructed the Social Security Administration to
redetermine the eligibility of individuals who were eligible
under the old standard and whose eligibility may terminate under
the new standard. 42 U.S.C. § 1382c, "Historical and Statutory
Notes," "Effective and Applicability Provisions," (2)
"Application to current recipients." By stating that in
redetermination cases involving children under the age of 18, "section 1614(a)(4) of
the Social Security Act would not apply," Congress indicated that
the medical improvement standard should not be used in continuing
Further, in its Policy Operation Manual 11070.11, the SSA
directed that in childhood disability redeterminations after P.L.
104-192 was passed, "[t]he medical improvement review standard in
section 1614(a)(4) of the Act and 20 C.F.R. 416.994a, used in
continuing disability reviews, shall not apply to these
Further, the fact that the ALJ referred to the medical
improvement standard in his decision has no bearing on actual
employment of that standard. R. 17. Later in his decision, he
stated the correct test to be used, R. 18, and employed that
test. R. 19-20. The ALJ's mention of the medical improvement
standard is not a reason to remand or question whether that
standard should have been employed. Fisher v. Bowen,
869 F.2d 1055, 1057 (7th Cir. 1989). ("No principle of administrative law
or common sense requires us to remand a case in quest of a
perfect opinion unless there is reason to believe that the remand
might lead to a different decision.") B. THE ALJ DID NOT RELY ON THE OPINION OF THE MEDICAL EXPERT
AND REASONABLY RELIED ON THE OPINION OF THE CONSULTING
Claimant argues that the ALJ improperly relied on the opinion
of the medical expert and the consulting psychologist while not
considering other evidence essential to the case. The Court will
first address the testimony of the medical expert, Dr. Lee, and
then the ALJ's reliance upon the opinion of the consulting
psychologist, Dr. Hilger.
The ALJ did not rely on the medical expert because Dr. Lee did
not offer any medical opinions regarding the disability of
Sharkie. At the ALJ's hearing on July 20, 2001, the ALJ initially
questioned Claimant, R. 26-47, followed by Dr. Lee's questioning,
R. 48-71. The Claimant states that Dr. Lee testified that
Sharkie's "impairments essentially were based on her mother's
failure to seek treatment." Pl. Mot. for Sum. Jud. 5. In the
record, however, Dr. Lee never offers an opinion on the causes or
medical reasons for Sharkie's disability.
Further, the ALJ, in his opinion, does not refer to any opinion
or information offered by Dr. Lee, with the exception of
mentioning that the Claimant seemed to have regarded Dr. Lee's
questioning as "accusatory of her conduct as a mother" and
proceeded to fall "into a fit of rage." R. 19. The ALJ
subsequently ended the hearing, and stated that he would be
sending Sharkie out for a psychological exam. R. 69-70.
Claimant also argues that the ALJ failed to give proper weight
to treating sources, and additionally, gave too much weight to
the consulting psychologist, Dr. Hilger. This Court finds that
the ALJ did properly weigh treating sources and reasonably relied
on the opinion of Dr. Hilger. In the ALJ's opinion, he cites to the record
regarding the evidence of three treating sources from Sharkie's
scholastic life,*fn2 and three treating sources that are
doctors or mental health counselors.*fn3 Contrary to
Claimant's assertion, the ALJ did not ignore other evidence.
Dr. Hilger's assessment of Sharkie's diagnosis was consistent
with other school records and evaluations. School professionals
consistently recorded observations that Sharkie had learning
disabilities, and was low average in reading and mathematics. R.
109, 327-28. Her IEPs from 1999, 2000, and 2001 recommended she
be placed in special education classes only in reading and
mathematics, and general education classes in Science, Social
Studies, Music and Physical Education. R. 306, 131-32. Further,
the special education classes that the school professionals
recommended were of the least restrictive type and for less that
50% of the school day. R. 114-15, 283-84, 266-67, 295-96, 298,
122, 306-07, 312, 319, 131. Several sources in the record
attributed Sharkie's poor performance in school to her repeated
tardiness and poor attendance. R. 325.
The reports from school professionals, particularly those
requiring special placement, are important in assessing children
with mental disorders. See 20 C.F.R. Part 404, Subpart P, App. 1 § 112.00D. Several school professionals reported
positive feedback from meetings with Sharkie, including comments
that she had "average and appropriate functioning in class," R.
155, and that she was a "friendly and compliant child" who "put
forth adequate effort in class despite not being able to work at
grade level." R. 325. There is nothing in the ALJ's opinion that
suggests that the entire record was not considered when the ALJ
handed down his decision. However, the ALJ is not required to
discuss every piece of evidence. Rohan v. Chater, 98 F.3d 996,
971 (7th Cir. 1996).
The ALJ is entitled to consider medical evidence and medical
source opinions. 20 C.F.R. § 416.924a(a). Further, the ALJ will
use the report from a consultative examination to resolve a
conflict in the evidence if one exists.
20 C.F.R. § 416.919a(a)(2). The ALJ was correct in using the opinion of Dr.
Hilger to resolve a conflict in the record, that is, the
performance that Sharkie exhibited in her two meeting with Dr.
Hilger was contrary to other evidence in the record regarding her
overall compliance with testing procedures R. 327, her adequate
effort, R. 325, and her appropriate behavior R. 155. In Sharkie's
first session with Dr. Hilger, he noted her "extremely poor
effort, lack of cooperation, and blatant malingering." R. 200,
202. This lack of effort led to a test score that put her in the
"moderately handicapped range" which is inconsistent with the
findings of school professionals and medical source opinions R.
When a consultative examiner finds that Claimant's performance
seems to involve "deliberate fabrication," the ALJ is entitled to
rely heavily on that opinion. Strunk v. Heckler, 732 F.2d 1357, 1360-61 (7th Cir. 1984). In Strunk,
in a neurological examination of the Claimant, the doctor noted
that Claimant could not "add 3" and blatantly underperformed in
other areas, which was a contradiction of her normal ability.
Id. Due to this discrepancy, the Court held that the validity
of the result of that testing and Claimant's testimony were
questionable. Id. The same is true in this case.
Given the record as a whole, the Court finds that the ALJ
reasonably relied on the opinion of Dr. Hilger regarding
Sharkie's impairments and level of functioning. Dr. Hilger's
report confirms, as the rest of the record does, that Sharkie
requires special education for learning disabilities. However,
substantial evidence supports the ALJ's conclusion that she was
not disabled. In Keys, the Seventh Circuit affirmed denial of
benefits despite claimant's low intelligence and difficult family
life and other factors. The Court held that the claimant could
function in school, and that if they were to deem him disabled
"so would millions of other children." 347 F.3d at 994. This
conclusion is equally applicable to Sharkie who was functioning
The ALJ applied the correct legal standard when assessing
Sharkie under the new guidelines. The ALJ's conclusion that
Sharkie is not disabled is supported by substantial evidence in
the record. For the reasons set forth in this opinion,
Claimant's motion for summary judgment is denied and the
Commissioner's motion for summary judgment is granted. The Commissioner's decision to deny Supplemental
Security Income child's benefits to Claimant's daughter, Sharkie
Harden, is affirmed.