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B.C., A Minor, By Her Father and Next Friend, D.C v. Michael J. Astrue

April 22, 2011


The opinion of the court was delivered by: Judge Edmond E. Chang


B.C., a minor acting through her father,*fn1 has moved for summary judgment, seeking reversal or remand of the Social Security Administration (SSA) Commissioner's decision denying her application for Supplemental Security Income.

R. 14. The SSA has filed a cross-motion for summary judgment, requesting affirmance.*fn2 R. 23. For the following reasons, this Court grants Plaintiff's motion and remands for a determination consistent with this opinion.


B.C. was born in 1996. Early on, testing revealed that she had heightened levels of lead in her blood. R. 10, Administrative Record (AR) ¶¶ 23-25. During the first grade, after teachers noticed her low scores on achievement tests, B.C. was examined by a psychologist. The psychologist reported that B.C. had average intelligence. Id. ¶ 24.

At the end of first grade, B.C.'s school prepared an Individualized Education Program. According to the program, B.C. needed special education services, despite being well-adjusted, happy, friendly, and outgoing. Id. ¶ 25. The summer after first grade, Dr. Darrell Snyder examined B.C. and diagnosed her with an unspecified learning disorder. Id. ¶ 26. Soon after, the Illinois Disability Determination Service (a service provided by the Illinois Department of Human Services) sent Dr. Erica Altman to examine B.C. Id. ¶ 29. Dr. Altman found that B.C.'s learning disability was not sufficient to qualify as a "disability" for Social Security Income (SSI) payments. Id.

B.C. transferred schools before the beginning of the second grade. Id. ¶ 25. Two months into the school year, B.C.'s teachers reported that she was well behaved and got along with everyone. Id. The teachers also noted, however, that B.C.'s cognitive impairment was interfering with her schoolwork. Id. She made careless mistakes and was unable to finish tasks on time. Id. The Disability Determination Service then sent a second psychologist, Dr. John Tomassetti, to examine B.C. Dr. Tomassetti, like Dr. Altman, found that B.C.'s learning disability did not qualify as a "disability" under SSI. Id. ¶ 29.

Towards the end of the school year, B.C. was found to be eligible to continue special education services. Id. ¶ 29. Despite low scores on standardized tests and general struggles with school, B.C. was promoted to the third grade. Id.

B.C. continued to receive special education during the next two years. By the end of the fourth grade, her Individualized Education Program indicated that she was progressing slowly. Id. ¶ 26. Although her performance improved, her reading level was at a second grade level, reading comprehension at a mid-second grade level, and math at an early third grade level. Id. Special education for B.C. was increased to 300 minutes per week for English/Reading and Math. In the fifth grade, B.C.'s report card indicated that she had been "very attentive and interested in reading" and "very disciplined." Id. ¶ 27.

B.C.'s mother originally applied for SSI payments in May 2003, when B.C. was in the first grade. Id. ¶ 20. The claim was denied, reconsidered, and denied again. Rhonda Miller was granted a hearing, which took place in April 2005. Several months later, the ALJ ruled in B.C.'s favor, finding that B.C. was disabled because her impairment functionally equaled a listed impairment. Id. Specifically, the ALJ concluded that B.C. had an extreme functional limitation in acquiring and using information. Id.

After conducting a review in January 2006, the Appeals Council found that the ALJ's decision was not supported by substantial evidence. Id. The claim was remanded and reassigned to another ALJ. B.C.'s mother passed away in December 2006, and B.C.'s father became her primary caretaker. Id.

The hearing following remand was held in March 2007. At this hearing, Dr. Keenan Ferrell testified that he examined B.C. and based on his analysis, she was disabled. Id. ¶ 21. Two months later, the ALJ ruled against B.C., finding that although B.C. passed the first two steps in meeting the disability standard, she did not meet the requirements of the third step. Id. ¶¶ 23-37. Specifically, the ALJ found that B.C. satisfied certain limitations in what is known in the regulations as "Category A" (see infra for further discussion), but not in "Category B." The ALJ was not convinced by Dr. Ferrell's testimony that B.C. had marked difficulties in "concentration, persistence or pace." Id. ¶ 30.

The ALJ also found that B.C.'s impairment did not functionally equal the listing. B.C. had a "marked limitation in acquiring and using information" but had no marked or extreme limitations in the other domains. Id. ¶¶ 30-37. Because B.C. did not meet, medically equal, or functionally equal the listings, the ALJ denied her benefits.



"A child qualifies as disabled and therefore may be eligible for SSI if he has a 'medically determinable physical or mental impairment, which results in marked and severe functional limitations' and the impairment 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); Hopgood ex rel. L.G. v. Astrue, 578 F.3d ...

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