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Taylor ex rel. T.L. v. Colvin

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

November 14, 2016

LORETHA TAYLOR ex rel. T.L. Claimant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.

          MEMORANDUM OPINION AND ORDER

          Jeffrey T. Gilbert, United States Magistrate Judge.

         Claimant 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.]

         Pursuant 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.

         I. PROCEDURAL HISTORY

         Claimant 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.)

         On 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).

         II. STANDARD OF REVIEW

         A 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).

         Substantial 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. 2009).

         The "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).

         Prior 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).

         To 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).

         Unlike 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. Id.

         III. DISCUSSION

         Claimant 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.[1] 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.

         Liberally 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.

         A. The "Meets or Medically Equals" Issue

         When an 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).

         1. Listing 112.02

         Listing 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).

         The ALJ 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.

         The 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.

         a. Paragraph (A)

         Dr. 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, § 112.02(A)(8)-(10).

         The ALJ 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.").

         b. Paragraph (B)(2)

         The 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.

         (1) ...


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