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S.K. v. Colvin

United States District Court, N.D. Illinois, Eastern Division

October 17, 2016

S.K., by his next friend DYANN KING, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          MARY M. ROWLAND United States Magistrate Judge.

         Dyann King, maternal aunt and legal guardian of S.K., filed this action seeking reversal of the final decision of the Commissioner of Social Security ending S.K.'s Supplemental Security Income under § 1614(a)(3)(C) of the Social Security Act (Act). 42 U.S.C. § 1382c(a)(3)(C). The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and S.K. has filed a request to reverse the ALJ's decision and remand for additional proceedings. For the reasons stated below, the case is remanded for further proceedings consistent with this Opinion.


         To recover Supplemental Security Income (SSI), a claimant must establish that he or she is disabled within the meaning of the Act. York v. Massanari, 155 F.Supp.2d 973, 976-77 (N.D. Ill. 2001).[1] 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.” See 42 U.S.C. § 1382c(a)(3)(C)(i); Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 699 (7th Cir. 2009). “There is a statutory requirement that, if you are eligible for disability benefits as a disabled child, your continued eligibility for such benefits must be reviewed periodically.” 20 C.F.R. § 416.994a(a).

         To determine if a claimant under the age of 18 continues to be disabled, the Social Security Administration (SSA) follows a three-step evaluation process. 20 C.F.R. § 416.994a(b). First, the ALJ considers whether there has been medical improvement since the most recent favorable determination that the claimant was disabled. Id. § 416.994a(b)(1). If there is no improvement, the claimant remains disabled.[2] Id. If there has been improvement, the ALJ proceeds to the next step and considers whether the impairment the child had at the time of the most recent favorable decision continues to meet or equal the severity of the listing it met or equaled at that time. Id. § 416.994a(b)(2). If the impairment does meet or equal the severity of the same listing section used to make the most recent favorable decision, the claimant remains disabled. Id. If the impairment does not still meet or equal the listed impairment, the ALJ proceeds to the third step. Id. At step three, the ALJ determines whether the child has any other severe impairment that meets, medically equals, or functionally equals a listing. Id.

         If the claimant's current impairment(s) meets or medically equals the severity of any listed impairment, the claimant's disability continues. 20 C.F.R. § 416.994a(b)(3)(ii). If not, the ALJ determines whether the claimant's impair-ment(s) functionally equal the listings. Id. § 416.994a(b)(3)(iii). If the claimant's current impairment(s) functionally equal the listings, the claimant's disability continues. Id. If the claimant's current impairment(s) do not functionally equal a listing, the claimant's disability has ended. Id.

         To functionally equal the listings, the ALJ must find an “extreme” limitation in one domain or a “marked” limitation in two domains. 20 C.F.R. § 416.926a(a). The domains are: (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 yourself; and (6) health and physical well-being. Id. § 416.926a(b)(1)(i)-(vi). A “marked” limitation exists when the impairment seriously interferes with the child's “ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(2)(i). An “extreme” limitation exists when a child's “impairment(s) interferes very seriously with [his] ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(3)(i).


         The SSA originally approved S.K. for SSI benefits on September 29, 2006, due to premature birth (35 2/7 week gestational age with birth weight of 1810 grams (4 pounds) and length 16.5 inches) with maternal heroin and cocaine use. (R. at 437- 42). Approximately three years later, the SSA reviewed S.K.'s disability status. The SSA determined that S.K.'s condition had improved and his condition was no longer disabling at the initial and reconsideration levels. (Id. at 168-69, 171, 172-76, 181- 84, 330-45, 347-52, 475-86). On August 9, 2011, S.K. and Ms. King, represented by counsel, testified at a hearing before an Administrative Law Judge (ALJ). (Id. at 53-67, 67-106). The ALJ also heard testimony from Milford Schwartz, M.D., a medical expert (ME). (Id. at 106-61, 240).

         On August 7, 2013, the ALJ found that S.K.'s disability ended as of January 1, 2010. (R. at 13-28). Applying the three-step sequential evaluation process, the ALJ found, at step one, that medical improvement occurred as of January 1, 2010, because S.K. no longer suffers from premature birth and there is no indication of any growth impairment. (Id. at 17). At step two, the ALJ found that since January 1, 2010, the impairments that S.K. had at the time of the most recent favorable decision dated September 29, 2006 (premature birth with maternal heroin and cocaine use) have not functionally equaled the Listing of Impairments. (Id.). At step three, the ALJ determined that since January 1, 2010, S.K. has had the severe impairments of static encephalopathy and attention deficit hyperactivity disorder (ADHD) diagnosed as of March 2011 but has not had an impairment or combination of impairments that meets, medically equals, or functionally equals one of the listed impairments. (Id. at 18, 23-28). The ALJ concluded that S.K. did not meet or medically equal either Listing 112.02 for organic brain disorder or Listing 112.11 for ADHD, finding less than marked limitations in all of the “B” criteria (cognitive/communicative functioning, social functioning, personal functioning, and concentration, persistence, or pace). (Id. at 23-24).

         In determining that S.K. does not have an impairment which functionally equaled a listing, the ALJ found that since January 1, 2010, S.K. has had a less than marked limitation in acquiring and using information, attending and completing tasks, caring for himself, and in health and physical well-being. (R. at 26-27). In the domain of interacting and relating to others, the ALJ found that since January 1, 2010, S.K. has had a marked limitation. (Id. at 26). The ALJ found that since January 1, 2010, S.K. has had no limitation in the domain of moving about and manipulating objects. (Id. at 27). With neither marked limitations in two domains nor an extreme limitation in one domain, the ALJ concluded that S.K.'s disability ended as of January 1, 2010, and S.K. has not become disabled again since that date. (Id. at 28).

         The Appeals Council denied S.K.'s request for review on May 29, 2014. (R. at 1- 7). S.K. now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


         Judicial review of the Commissioner's final decision is authorized by § 405(g) of the SSA. In reviewing this decision, the Court may not engage in its own analysis of whether the S.K. is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it “reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner.” Id. The Court's task is “limited to determining whether the ALJ's factual findings are supported by substantial evidence.” Id. (citing § 405(g)). Evidence is considered substantial “if a reasonable person would accept it as adequate to support a conclusion.” Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014) (“We will uphold the ALJ's decision if it is supported by substantial evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (citation omitted). “Substantial evidence must be more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). “In addition to relying on substantial evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. Barn-hart, 425 F.3d 345, 351 (7th Cir. 2005).

         Although this Court accords great deference to the ALJ's determination, it “must do more than merely rubber stamp the ALJ's decision.” Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation omitted). “This deferential standard of review is weighted in favor of upholding the ALJ's decision, but it does not mean that we scour the record for supportive evidence or rack our brains for reasons to uphold the ALJ's decision. Rather, the ALJ must identify the relevant evidence and build a ‘logical bridge' between that evidence and the ultimate determination.” Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014). Where the Commissioner's decision “lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).


         S.K. was born on May 13, 2006, and has a history of premature birth, asthma, and ADHD. (R. at 53). On October 15, 2009, when S.K. was three years and five months old, Harvey I. Friedson, Psy.D., conducted a psychological evaluation. (Id. at 456-58). Dr. Friedson administered a Wechsler Preschool and Primary Scale of Intelligence test which resulted in a verbal IQ of 74, a performance IQ of 73, a full scale IQ of 70, and a global language score of 68. (Id. at 456). Dr. Friedson concluded that S.K.'s scores indicated mild to borderline range of delays. (Id. at 458). Dr. Friedson found that S.K. “does present as well-related. In this one-to-one setting, he remains in his chair. He did have some difficulty with transitions. In the waiting room, he also appeared active. Nevertheless, in this setting, he never required limit-setting.” (Id.).

         David W. Miller, M.D., performed a pediatric consultative examination on October 15, 2009. (R. at 461-65). Dr. Miller observed that S.K. was “an alert, extremely active little boy with limited speech who did appear to enjoy interacting with the evaluator.” (Id. at 463). S.K. was able to “copy a line but not a circle or a cross.” (Id. at 462). Dr. Miller noted a concern about S.K.'s development: “The child had a history of developmental delays. He is not receiving any therapies at the present time. His speech is particularly noticeable as a developmental issue.” (Id. at 464). Ms. King reported that S.K. was unusually hyperactive. (Id.). Dr. Miller concluded: “During the examination today, the child was extremely active, but it would be difficult to say whether or not he was beyond the realm of normal for his age group.” (Id.).

         On December 7, 2009, Melanie Boyd, M.S., CCC-SLP, performed a speech and language consultative examination. (R. at 471-74). Ms. King reported that while S.K. has no medical conditions, she is concerned about S.K.'s hyperactive behavior. (Id. at 472). Due to S.K.'s short attention span and young age, the Preschool Language Scale-4 was used to assess S.K.'s articulation skills. (Id.). S.K.'s conversational speech was 75% intelligible with unfamiliar listeners when context was known and 50% intelligible or less when context was unknown. (Id.). On the auditory comprehension portion of the test, S.K. earned a standard score of 71, a percentile rank of 3, and an age equivalent of 2 years and 4 months. (Id. at 473). S.K. “was unable to identify colors, make inferences or identify categories of objects in pictures.” (Id.). S.K. achieved a standard score of 80, a percentile rank of 9, and an age equivalent of 2 years and 8 months on the expressive communication portion. (Id.). S.K. achieved a total standard score of 73, a total percentile rank of 4, and a total age equivalent of 2 years, 6 months. (Id.). Boyd concluded that S.K. demonstrated moderate delays in receptive language skills and mild deficits in expressive language skills. (Id.). She opined that S.K.'s oral motor skills seemed adequate for the production of speech, his parameters of voice were within functional limits, and his speech was fluent. (Id. at 474).

         In December 2009, three state agency consultants (Deborah Alrbight, M.D., Donna Hudspeth, Psy.D, and Michelle Curran, SLP) reviewed S.K.'s records and completed the Childhood Disability Evaluation Form. (R. at 475-80). They found that S.K. had severe impairments of speech delay, developmental delay, and learning disorder but found that S.K. did not meet, medically equal, or functionally equal a listing because he had less than marked limitations in the second, third, and sixth domains (i.e. attending and completing tasks, interacting and relating with others, and health and physical well-being) and no limitations in the fourth and fifth domains (i.e. moving and manipulating objects and caring for yourself). (Id. at 475, 477-78). The state agency consultants found that S.K. was markedly limited in the first domain of acquiring and using information. (Id. at 477).

         A second pediatric consultative examination was conducted by Daksha A. Patel, M.D., on March 8, 2010. (R. at 489-92). Ms. King reported that S.K. was able to feed himself, undress himself, and brush his teeth with help. (Id. at 490). Dr. Patel found that S.K. was alert, active, and cooperative, did not know colors, was able to draw a circle, and was able to indicate his needs. (Id. at 490-91).

         On March 9, 2011, S.K.'s teachers at his YMCA preschool detailed their developmental concerns regarding S.K. (R. at 500). They reported that S.K. cries throughout the day and “has difficulty staying on task, following the routine of the day, listening to the teachers, [and] following directions.” (Id.). The teachers reiterated Ms. King's concerns about S.K. “not listening, following directions, being extremely active, [and] crying.” (Id.). The YMCA referred S.K. to St. Mary's Hospital for Children for a psychological evaluation and recommended that Ms. King follow up with a mental health professional. (Id.). On March 29, 2011, Irma E. Maravilla, M.D., S.K.'s pediatrician, diagnosed ADHD with a history of behavior and hyperactivity problems. (Id. at 517).

         In June 2011, Linda Schmidt, S.K.'s preschool teacher, who had known him for two years, completed a Teacher Questionnaire regarding S.K.'s functioning in each of the six childhood functional domains. (R. at 93, 524-30). In the second domain of attending and completing tasks, Schmidt reported obvious or greater problems in 8 of 13 activities. (Id. at 526). She explained that “[S.K.'s] attention span is short. He has difficulty in a large group setting especially when a teacher is discussing a subject or study. [S.K.] becomes easily distracted and will act inappropriately causing great disruption among the classroom environment.” (Id.). In the third domain of interacting and relating with others, Schmidt opined obvious or greater problems in 12 of the 13 activities, including very serious problem (the most severe rating) in seeking attention appropriately, expressing anger appropriately, and respecting/obeying adults and serious problems in playing cooperatively with other children, making and keeping friends, using language appropriate to the situation and listening, and taking turns in a conversation. (Id. at 527). She concluded that “[S.K.] does not have difficulty playing and working independently. It is when he interacts with other children in the classroom that [S.K.'s] behavior becomes inappropriate. He has difficulty playing cooperatively in a group of three or more children.” (Id.).

         In the fifth domain of caring for himself, Schmidt assessed a very serious problem (the most severe rating) in five of the nine activities, including handling frustration appropriately, being patient when necessary, identifying and appropriately asserting emotional needs, responding appropriately to changes in own mood (e.g. calming self), and using appropriate coping skills to meet daily demands of school environment. (R. at 529). She explained:

S.K. displays a short temper with poor judgment. When [S.K.] becomes angry he will scream, cry, and kick anyone (student or adult) who is in his reach. He has difficulty calming himself and interaction with others is impossible during this period of time. [S.K.] when angry becomes unsafe for himself and those around him. He will throw objects, kick and punch the person that is closest to him.

(Id.). Ms. Schmidt had no opinion regarding S.K.'s abilities in the first domain of acquiring and using information and found no problems in the fourth domain of moving about and manipulating objects. (Id. at 525, 528).

         S.K. was five years old at the time of the hearing before the ALJ on August 9, 2011. (R. at 53). Ms. King related that S.K.'s mother was using cocaine and heroin at the time of his birth. (Id. at 68-69). Ms. King indicated that she has been S.K.'s caregiver since birth. (Id. at 60). At the time of the hearing, S.K. was in an all-day preschool/day care class for children with learning disabilities and behavioral issues. (Id. at 69-70). Ms. King testified:

Q. And when he entered the kindergarten, was there any kind of testing or anything? Did they place him in a certain kind of kindergarten or does everyone just ...

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