United States District Court, N.D. Illinois, Eastern Division
LORETHA TAYLOR ex rel. T.L. Claimant,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.
MEMORANDUM OPINION AND ORDER
Jeffrey T. Gilbert, United States Magistrate Judge.
Loretha Taylor ("Claimant") seeks review of the
final decision of Respondent Carolyn W. Colvin, Acting
Commissioner of Social Security ("Commissioner"),
denying Claimant's application for childhood supplemental
security income ("SSI") on behalf of her minor
child T.L. under Title XVI of the Social Security Act.
Pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1, the
parties have consented to the jurisdiction of a United States
Magistrate Judge for all proceedings, including entry of
final judgment. [ECF No. 5.]
to Federal Rule of Civil Procedure 56, Claimant has moved for
summary judgment. [ECF No. 14.] For the reasons stated below,
Claimant's Motion for Summary Judgment is granted, and
the case is remanded for further proceedings consistent with
this Memorandum Opinion and Order.
filed an application for SSI on September 19, 2011, alleging
a disability onset date of January 1, 2008 for T.L. (R. 17.)
After an initial denial and a denial on reconsideration,
Claimant filed a request for an administrative hearing on May
29, 2012. (R. 17, 111-13, 115-18, 120-22.) Claimant,
represented by counsel, appeared and testified before an
Administrative Law Judge ("AIJ") on December 13,
2013. T.L. also appeared and testified, as did the
psychological expert Dr. Demetri Dres. (R. 44-108.)
January 3, 2014, the ALJ issued a written decision denying
Claimant's application for SSI based on a finding that
T.L. was not disabled under the Social Security Act. (R.
17-38.) The opinion followed the three-step sequential
evaluation process that applies to a child disability
analysis under the Social Security Regulations. 20 C.F.R.
§ 416.924. The ALJ found at step one that T.L., who was
12 years old at the time of the hearing, had not engaged in
substantial gainful activity since her application date of
September 29, 2011. (R. 20.) T.L.'s severe impairments at
step two included borderline intellectual functioning, a
learning disorder, and attention deficit/hyperactivity
disorder ("ADHD"). The ALJ also found that
oppositional-defiant disorder and a cognitive impairment
constituted non-severe impairments. (R. 20.) At step three,
none of T.L.'s impairments met or medically equaled
listings 112.02 (organic mental disorders), 112.05 (mental
retardation), or 112.11 (attention deficit/hyperactive
disorder), either singly or in combination. (R. 20-23.) The
ALJ further concluded that T.L.'s impairments were not
functionally equivalent to any listing. (R. 23-37.) He
therefore determined that she was not disabled. (R. 38.) The
Social Security Appeals Council subsequently denied
Claimant's request for review, and the ALJ's decision
became the final decision of the Commissioner. (R. 1-3.)
Claimant now seeks review in this Court pursuant to 42 U.S.C.
§ 405(g). See Haynes v. Barnhart, 416 F.3d 621,
626 (7th Cir. 2005).
STANDARD OF REVIEW
decision by an ALJ becomes the Commissioner's final
decision if the Appeals Council denies a request for review.
Sims v, Apfel, 530 U.S. 103, 106-07 (2000). Under
such circumstances, the district court reviews the decision
of the ALJ. Id. Judicial review is limited to
determining whether the decision is supported by substantial
evidence in the record and whether the ALJ applied the
correct legal standards in reaching her decision. Nelms
v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971). A
"mere scintilla" of evidence is not enough.
Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002). Even when there is adequate evidence in the record to
support the decision, however, the findings will not be
upheld if the ALJ does not "build an accurate and
logical bridge from the evidence to the conclusion."
Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
If the Commissioner's decision lacks evidentiary support
or an adequate discussion of the issues, it cannot stand.
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
"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). Though the
standard of review is deferential, a reviewing court must
"conduct a critical review of the evidence" before
affirming the Commissioner's decision. Eichstadt v.
Astrue, 534 F.3d 663, 665 (7th Cir. 2008). It may not,
however, "displace the ALJ's judgment by
reconsidering facts or evidence." Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Thus,
judicial review is limited to determining whether the ALJ
applied the correct legal standards and whether there is
substantial evidence to support the findings. Nelms,
553 F.3d at 1097. The reviewing court may 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).
to 1996, a child was considered disabled if he or she had a
physical or mental impairment that was of comparable severity
to one that would disable an adult. 42 U.S.C. §
1382c(a)(3)(A) (1994); 20 C.F.R. § 416.924 (1996);
Scott, 297 F.3d at 593-94. Congress altered this
standard under the Personal Responsibility and Work
Opportunity Reconciliation Act ("PRWORA") to
require a more stringent showing by a juvenile claimant
seeking SSI disability. Scott, 297 F.3d at 594 n.5.
A child is considered disabled under the PRWORA standard if
he "has a medically determinable physical or mental
impairment, which results in marked and severe functional
limitations" for a period of at least twelve months. 42
U.S.C. § 1382c(a)(3)(C)(i); Harris v. Barnhart,
231 F.Supp.2d 776, 779-80 (N.D. 111. 2002).
determine if such an impairment exists, the Social Security
Administration has promulgated regulations that limit the
familiar five-step process applicable to adult claimants to
three steps. The ALJ's inquiry asks: (1) is the child
engaged in substantial gainful activity? (2) does the child
have a medically determinable impairment that is severe? and,
(3) do these impairments meet, medically equal, or
functionally equal one of a list of severe impairments set
forth in the regulations? 20 C.F.R. § 416.924(b)-(d). An
affirmative answer at step one ends the analysis, and a child
must be found not to be disabled regardless of her age or
medical condition. 20 C.F.R. § 416.924(b). A negative
answer at step two also requires a finding that the child is
not disabled. 20 C.F.R. § 416.924(c).
the step three requirements applicable to an adult claimant -
which refer only to an impairment that "meets or
equals" a listing requirement, 20 C.F.R. §
416.920(d) - the regulations state that a child also
satisfies the third step when her condition functionally
equals a listed impairment. 20 C.F.R. § 416.924(d). This
requirement permits a finding of disability if a child's
impairment or combination of impairments result in one of two
possible findings. First, the impairments must give rise to
"marked" limitations in two of six "domains of
functioning, " including (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 oneself, and (6) health
and physical well-being. 20 C.F.R. §§ 416.926a(a)
& 416.926a(b)(1)(i)-(vi). A limitation is marked if it
"interferes seriously" with a child's ability
to independently begin, sustain, or finish activities. 20
C.F.R. § 416.926a(e)(2)(i). Such a limitation is
"more than moderate" and is equivalent to what one
would expect for the functioning level of a child whose
standardized test scores are at least two, but less than
three, standard deviations below the mean. Id. In
the alternative, impairments functionally equal a listing
requirement when they constitute an "extreme"
limitation in one of the six domains of activity. 20 C.F.R.
§ 416.926a(a). A limitation is extreme if it "very
seriously" interferes with a child's ability to
initiate, sustain, or complete activities. 20 C.F.R. §
416.926a(e)(3)(i). An extreme limitation indicates the
"worst limitations, " though it does not require a
complete loss of functioning. It indicates a functioning
level expected for a child whose standardized test scores are
at least three standard deviations below the mean.
asserts that the ALJ erred at step three. Unfortunately, it
is not entirely clear what the full scope of her argument
concerning the ALJ's alleged error includes. Claimant
argues that T.L.'s impairments met or medically equaled
listings 112.02 and 112.11 because the ALJ improperly found
that T.L. did not have a marked limitation in the functional
domains of attending and completing tasks and interacting and
relating to others. The problem with that claim is that the
question of whether a child meets or medically equals
listings 112.02 and 112.11 only concerns the specific
criteria set out in the listings themselves. As discussed
below, those criteria do not include the functional domains
of attending to tasks or relating to others. The six domains
of a child's functioning only come into play when an ALJ
addresses the question of whether the child functionally
equals a listing, not when he considers the issue of whether
she meets or medically equals it. Claimant's conflation of
these two standards makes it unclear what part of the
ALJ's decision she is disputing. The evidentiary basis of
her argument fails to clarify the matter. Claimant contends
that the ALJ improperly assessed the opinions of (1)
T.L.'s treating physicians, (2) the testifying
psychological expert Dr. Dres, and (3) the state-agency
expert Dr. Kirk Boyenga. That, too, creates confusion as to
what Claimant is actually disputing: T.L. did not have a
treating physician; Dr. Dres did not testify on the
functional equivalency issue; and the ALJ did not rely on Dr.
Boyenga to assess the "meets or equals" topic.
construed, Claimant's motion is best interpreted as
challenging all aspects of the ALJ's step three analysis
even though the evidence that Claimant cites confuses the
meets, medically equals, and functionally equals steps that a
child disability case requires. The Commissioner construes
the Motion for Summary Judgment in that way. The Court
follows the Commissioner's lead and addresses all aspects
of the ALJ's step three decision.
The "Meets or Medically Equals" Issue
ALJ considers if a claimant's impairments meet or equal a
listing, the ALJ must identify the relevant listing by name
and provide more than a perfunctory analysis of its
requirements. Barnett v. Barnhart, 381 F.3d 664, 668
(7th Cir. 2004). "Whether a claimant's impairment
equals a listing is a medical judgment, and an ALJ must
consider an expert's opinion on the issue."
Id. at 670. Nevertheless, an ALJ's failure to
state the reasons why a listing is not met does not require
remand unless the claimant first shows why substantial
evidence demonstrates that she has met or equaled the listing
in question. Scheck v. Barnhart, 357 F.3d 697,
700-01 (7th Cir. 2004); Alesia v. Aslrue, 789
F.Supp.2d 921, 932 (N.D. 111. 2011).
112.02 requires a claimant to show that he suffers from
abnormalities in perception, cognition, affect, or behavior
that are associated with a brain dysfunction. A two-pronged
analysis applies. First, the claimant must establish that a
Paragraph (A) disturbance exists. That includes one often
different disturbances such as a developmental delay, a
memory or cognitive impairment, a perceptual or thinking
disturbance or an impairment of impulse control. 20 C.F.R.
Pt. 404, Subpt. P, App.l, § 112.02(A)(1)-(10). Second,
the claimant must satisfy Paragraph (B). For a child between
the ages of three and 18, at least two marked impairments
must exist in age-appropriate (1) cognitive/communicative
functioning, (2) social functioning, (3) personal
functioning, or (4) concentration, persistence, and pace. 20
C.F.R. Pt. 404. Subpt. P, App.l, § 112.02(B)(2)(a)-(d).
concluded that T.L. did not meet or equal either the
Paragraph (A) or the Paragraph (B)(2) factors. Claimant does
not identify which of the Paragraph (A) disturbances she
claims the ALJ considered incorrectly, or what evidence
supports a different finding on the issue. That would
ordinarily require no consideration of her claim. See
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991) ("A skeletal 'argument', really nothing
more than an assertion, does not preserve a claim, ").
Claimant also does not cite the record in any meaningful way
concerning the relevant Paragraph (B)(2) factors, which the
ALJ discussed at length. That, too, could support a finding
that remand is not necessary on the Paragraph (B)(2) issue.
Scheck, 357 F.3d at 700-01 (stating that the
claimant must present substantial evidence contradicting the
ALJ's finding). The Commissioner therefore argues that
Claimant has waived the entire listing 112.02 issue by only
presenting a series of conclusory allegations that fail to
tie the record to the ALJ's analysis.
Commissioner's position is not without some merit. Courts
are not obligated to seek out arguments that the parties have
not clearly made. See Dunkel, 927 F.2d at 956
("Judges are not like pigs, hunting for truffles buried
in briefs."). On the other hand, this case presents a
number of factors that weigh against the Commissioner's
argument. The ALJ's decision is unusually lengthy and
depends on a complex interplay between the medical evidence,
the experts' opinions, and alleged conflicts between
those opinions. The ALJ also took the relatively rare step of
giving only "slight" weight to the hearing
testimony of his own expert Dr. Dres. (R. 26-27.) The
testifying psychologist stated that T.L. met the Paragraph
(A) and Paragraph (B)(2) factors of listing 112.02 and was
therefore presumptively disabled. (R. 105-07.) The record
shows that numerous errors attended the ALJ's analysis of
Dr. Dres' testimony, and that those shortcomings affected
significant portions of the ALJ's grounds for finding
that T.L, was not disabled. For these reasons, the Court
respectfully disagrees with the Commissioner and finds that
fundamental fairness requires an analysis of the full scope
of the ALJ's step three analysis.
Dres testified in broad terms at the hearing that T.L. met
Paragraph (A) without identifying which of Paragraph
(A)'s ten disturbances he thought applied to her. (R.
106.) The Commissioner claims that the ALJ properly rejected
Dr. Dres' testimony on the matter, but the Commissioner
is also silent on what disturbance is at issue or what
evidence supports the ALJ's decision. For his part, the
ALJ merely stated the following: "I give slight weight
to Dr. Dres' testimony that the claimant meets listing
112.02A[.]" (R. 20.) That neither identified the
relevant aspect of Paragraph (A) that the ALJ thought he was
rejecting nor suggests what evidence he relied on to dismiss
Dr. Dres' opinion. It is well established that an ALJ
"must articulate at some minimal level his analysis of
the evidence." Herron v. Shalala, 19 F.3d 329,
333 (7th Cir. 1994); see also Baker ex rel Baker v.
Barnhart, 410 F.Supp.2d 757, 766 (E.D. Wis. 2005). The
ALJ's failure in this case to state what Paragraph (A)
disturbance was at issue or to cite any evidence related to
it does not meet that standard. Such oversight may not
require remand when no evidence exists to support the
position that a claimant meets a listing. See
Scheck, 357 F.3d at 701. That is not the case here
because, as discussed below, the record shows that T.L.
experienced at least some disturbances in three of the
Paragraph (A) categories -concentration, attention, or
judgment, cognitive functioning, and impulse control in
social settings, 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
may have thought that he was addressing the Paragraph (A)
issue because he cited T.L.'s cognitive/communicative
functioning, social functioning, and concentration,
persistence, or pace immediately after stating that she did
not satisfy Paragraph (A). (R. 20.) Insofar as he assumed
that addressed the matter, the ALJ overlooked that the
functional areas he cited only concern Paragraph (B)(2). They
are not part of Paragraph (A)'s criteria. The ALJ
therefore improperly conflated the listing's careful
distinctions between the Paragraph (A) disturbances and the
functional areas outlined in Paragraph (B)(2). That provides
no discussion of the listing issue at all. Remand is
therefore required so that the ALJ can identify the Paragraph
(A) factors that apply and explain his reasons for rejecting
Dr. Drew' testimony. See Minnick v.
Colvin, 775 F.3d 929, 935-36 (7th Cir. 2015) ("This
is the very type of perfunctory analysis we have repeatedly
found inadequate to dismiss an impairment as not meeting or
equaling a Listing.").
Paragraph (B)(2) topic presents a more complex set of
problems. Dr. Dres testified that T.L. met the (B)(2)
criteria because she had marked limitations in her (1)
cognitive/communicative functioning, (2) social functioning,
and (3) concentration, persistence, and pace. That satisfied
Paragraph (B)(2)'s requirement that a child have a marked
impairment in at least two of the four functional categories
identified in the listing. Dr. Dres' testimony, and the
ALJ's discussion of it, involved T.L.'s school
records, Claimant's testimony, and reports issued by
several examining consultants and T.L.'s teachers. Each
is discussed below.