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Nelson v. Colvin

United States District Court, Northern District of Illinois, Eastern Division

April 16, 2015

LATACHE NELSON, on behalf of her minor child S.N., Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, [1] Defendant.

MEMORANDUM OPINION AND ORDER

Jeffrey T. Gribert, United States Magistrate Judge

Plaintiff Latache Nelson, for her minor child S.N., ("Claimant") seeks review of the final decision of the Acting Commissioner of Social Security Administration ("Commissioner") denying her application for supplemental security income under section 1614(a)(3)(C) of the Social Security Act. Claimant filed this appeal pursuant to 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1 for all proceedings, including entry of final judgment.

This matter is before the Court on the parties' cross-motions for summary judgment. For the reasons stated herein, Claimant's motion [ECF 15] is granted, and the Commissioner's motion [ECF 27] is denied. This case is remanded for further proceedings consistent with this Memorandum Opinion and Order.

I. PROCEDURAL HISTORY

Claimant filed an application for supplemental security income on behalf of S.N. on January 15, 2009, alleging a disability onset date of September 19, 2008. (R.16). S.N. experiences headaches, seizures and has a speech disorder. (R.19). The application was denied on March 5, 2009 and again after reconsideration on August 20, 2009. (R.16). Claimant filed a written request for a hearing before an Administrative Law Judge ('ALT") on October 13, 2009. (R.16). Claimant and S.N. appeared and testified at a hearing on October 18, 2010, and were represented by an attorney at the hearing. (R. 16).

On June 30, 2011, the ALJ denied Claimant's application for supplemental security income and found that S.N. was not disabled under the Social Security Act. (R. 32-45). At step one, the ALJ found that S.N. was a school-age child on January 15, 2009, the date the application was filed, and currently is a school-age child who has not engaged in substantial gainful activity since the application date. (R.19). At step two, the ALJ found that S.N. had the severe impairments of a seizure disorder, headaches and a speech disorder. (R. 19). At step three, however, the ALJ found that S.N. did not have an impairment or combination of impairments that met, medically equaled or functionally equaled the listed impairments in 20 C.F.R part 404, Subpart P, Appendix 1 (20 C.F.R §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926) of the regulations. (R. 20). Accordingly, the ALT concluded that S.N. was not disabled under the Social Security Act. (R. 24).

Claimant requested review of the ALJ's decision by the Appeals Council, but her request for review was denied on April 3, 2012 (R. 6-10), leaving the ALPs decision as the final decision of the Commissioner. See 20 C.F.R. § 404.981. This Court, therefore, has jurisdiction pursuant to 42 U.S.C. § 405(g).

II. ANAYLSIS

Claimant argues that this case should be reversed or remanded because the ALJ (1) did not consider applicable Listings; (2) did not make an explicit credibility determination; and (3) did not evaluate S.N.'s functional limitations adequately. After reviewing the parties' briefs and the administrative record, the Court concludes that the ALT erred in not considering Listing 112.05D, failed to provide any explanation for her credibility determination concerning the testimony of Claimant and S.N., and did not adequately account for Claimant's limitations in her functional equivalence analysis. Therefore, remand is appropriate.

A. THE ALJ ERRED IN FAILING TO INCLUDE LISTING 112.05D IN HER EVALAUTION OF S.N.

Claimant argues that S.N.'s impairments meet Listings 112.05D and 112.02 that the ALJ erred in not considering these Listings in her step three analysis. The Commissioner disagrees and argues that the ALJ was not required to mention either Listing. The Court agrees with Claimant that the ALJ erred in not considering Listing 112.05D in her analysis.

In order to meet a Listing, a claimant must show that his impairment satisfies all of the various criteria specified in the Listing. Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). A claimant can medically equal a Listing if he has an impairment set forth in the Listings, does not exhibit one or more of the findings specified in the particular Listing, but has other findings related to his impairment that are at least of equal medical significance to the required criteria. 20 C.F.R. § 416.926(b). In considering whether a claimant's condition meets or equals a Listing, the ALJ must discuss the Listing by name and offer more than a perfunctory analysis. Kastner v. Astrue, 697 F.3d 642, 647 (7th Cir. 2012); Bamett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). If a child-claimant does not meet or equal any Listing, the ALJ must address functional equivalence under the six domains. Id.; 20 C.F.R. § 416 .926a.

The Listings identify and describe impairments that the SSA considers severe enough to prevent an individual from doing any gainful activity, regardless of age, education, or work experience. 20 C.F.R. § 404.1525(a). The claimant bears "the burden to present medical findings that match or equal in severity all the criteria specified by a listing." Knox v. Astrue, 321 Fed. Appx. 652, 655 (7th Cir. 2009) (citing Sullivan v. Zebley, 493 U.S. 521, 531 (1990)); Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). The Social Security regulations do not require that an ALJ include every possible listing that might apply. Nor has the Seventh Circuit mandated such a requirement. Rice v. Barnhart, 384 F.3d 363, 369-70 (7th Cir. 2004).

Social Security Regulation 98-lp provides that a child's impairment meets Listing 112.05D "when the child has a diagnosis of mild mental retardation and a physical or mental impairment imposing additional and significant limitation of function [i.e. more than minimal limitation of function]." SSR 98-lp. SSR 98-lp explains that the significant subaverage general intellectual functioning needed to establish the component of the diagnosis of the mild mental retardation for Listing 112.5D is shown by a valid verbal, performance, or full scale IQ of 60 through 70. SSR 98-lp also recognizes that a speech ...


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