United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. ROWLAND United States Magistrate Judge.
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
THE SEQUENTIAL EVALUATION PROCESS
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). 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).
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. 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
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.
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. §
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).
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
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).
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).
STANDARD OF REVIEW
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).
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.
RELEVANT MEDICAL EVIDENCE
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
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.).
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).
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).
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).
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).
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
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
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 ...