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Finley ex rel. A.G. v. Berryhill

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

May 31, 2017

PATRICIA FINLEY, ex rel. A.G. a minor, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          M. DAVID WEISMAN UNITED STATES MAGISTRATE JUDGE.

         Patricia Finley brings this action on behalf of A.G., a minor, pursuant to 42 U.S.C. § 405(g) for judicial review of the Social Security Administration Commissioner's decision denying A.G.'s application for benefits. For the reasons set forth below, the Court reverses the Commissioner's decision.

         Background

         Plaintiff, on behalf of A.G., applied for supplemental security income on March 22, 2012, alleging a disability onset date of March 22, 2011. (R. 133.) The application was initially denied on July 16, 2012, and again after reconsideration on November 9, 2012. (R. 83-84.) Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”), which was held on December 10, 2013. (See R. 47-82.)

         On January 29, 2014, the ALJ denied the application. (R. 21-42.) The ALJ used the three-part, sequential test for determining whether a child is disabled, considering: (1) whether A.G. had performed any substantial gainful activity during the period for which she claims disability; (2) whether she has a severe impairment or combination of impairments; and (3) whether her impairment meets, medically equals or functionally equals a listed impairment. (R. 22); see 20 C.F.R. § 416.924(b)-(d). In determining whether an impairment functionally equals a listing, the ALJ must consider the child's functioning in six domains: (1) “[a]cquiring and using information”; (2) “[a]ttending and completing tasks”; (3) “[i]nteracting and relating with others”; (4) “[m]oving about and manipulating objects”; (5) “[c]aring for [her]self”; and (6) “[h]ealth and physical well-being.” 20 C.F.R. § 416.926a(g)-(1). An impairment or combination of impairments functionally equals a listing if the child has “marked” limitations in two of the domains or an “extreme” limitation in one of the domains. 20 C.F.R. § 416.926a(d). A “‘marked' limitation is one that is “‘more than moderate' but ‘less than extreme.'” 20 C.F.R. § 416.926a(e)(2)(i). A child has a “marked” limitation when her “impairment(s) interferes seriously with [her] ability to independently initiate, sustain, or complete activities.” Id. An “extreme” limitation is the “rating . . . give[n] to the worst limitations, ” though it does not “necessarily [require] . . . a total lack or loss of ability to function.” 20 C.F.R. § 416.926a(e)(3)(i).

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the date of her application. (R. 24.) At step two, the ALJ found that plaintiff has the severe impairments of “learning disability, major depressive disorder, attention deficit hyperactivity disorder, and intermittent explosive disorder.” (Id.) At step three, the ALJ found that plaintiff does not have an impairment or combination of impairments that meets, medically equals, or functionally equals the severity of a listed impairment, and thus is not disabled. (R. 25-26, 41.)

         Discussion

         The Court reviews the ALJ's decision deferentially, affirming if it is supported by “substantial evidence in the record, ” i.e., “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is generous, it is not entirely uncritical, ” and the case must be remanded if the “decision lacks evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

         Plaintiff argues that the Appeals Council erred in failing to remand the case to the ALJ after plaintiff submitted new, material evidence - medical records from A.G.'s psychiatrist, Dr. Pedemonte, dated July 30, 2013 and April 21, 2014. See 20 C.F.R. 404.970(b) (“If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.”). As the Seventh Circuit has explained, however, the Court's ability to review the Appeals Council's decision “depends on the grounds on which the Council declined to grant plenary review.” Stepp v. Colvin, 795 F.3d 711, 722 (7th Cir. 2015). If the Council determined that the evidence plaintiff submitted was not “new and material” within the meaning of regulation, the Court has “jurisdiction to review that conclusion for legal error.” Id. If the Appeals Council found that the evidence was new and material but denied review of the ALJ's decision because the supplemented record did not show that the ALJ's decision was contrary to the weight of the evidence, “the Council's decision not to engage in plenary review is discretionary and unreviewable.” Id. (quotation omitted).

         In relevant part, the Appeals Council's decision states:

In looking at your case, we considered the reasons you disagree with the decision and the additional evidence [from Dr. Pedemonte].
We considered whether the [ALJ's] action, findings, or conclusion is contrary to the weight of the evidence currently of record.
We found that this information does not provide a basis for changing the [ALJ's] decision.

(R. 2.) Defendant contends this language shows that the Appeals Council deemed the supplemental evidence new and material but not a basis for changing the ALJ's decision, i.e., that the Council's decision is unreviewable. The ...


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