United States District Court, N.D. Illinois, Eastern Division
TANYA SARACCO ex rel. T.H., Plaintiff,
NANCY BERRYHILL, Acting Commissioner Social Security,  Defendant.
MEMORANDUM OPINION AND ORDER
MARIA VALDEZ, United States Magistrate Judge
Tanya Saracco seeks review of the final decision of the
Commissioner of Social Security denying her application for
childhood supplemental security income (“SSI”) on
behalf of her minor child T.H. under Title XVI of the Social
Security Act. The parties consented to the jurisdiction of
the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c) and Local Rule 73.1, and Plaintiff filed a
motion for summary judgment. For the reasons stated below,
Plaintiff's motion is granted in part and denied in part,
and the matter is remanded to the Commissioner for further
filed an application for SSI on December 31, 2011, alleging a
disability onset date for T.H. of August 13, 2004. (R. 64-65,
73.) After an initial denial and a denial on reconsideration,
Administrative Law Judge (“ALJ”) Patrick Nagle
held an administrative hearing on October 18, 2013. (R.
47-63.) Plaintiff appeared and testified after waiving her
right to be represented by counsel. On November 12, 2013, the
ALJ issued a written decision denying Plaintiff's
application for SSI. (R. 27-42.) The Appeals Council
initially denied review on September 3, 2014. (R. 17-19.)
Plaintiff then obtained counsel and submitted additional
evidence to the Appeals Council, which set aside its earlier
action only to deny review once again on May 26, 2015. (R.
1-7.) The ALJ's decision therefore became the
Commissioner's final decision, and Plaintiff seeks review
in this Court pursuant to 42 U.S.C. § 405(g).
School and Medical Records
was six years old at the time that Plaintiff filed her
application for SSI benefits, claiming that T.H. had been
disabled since her birth on August 13, 2004 due to attention
deficit/hyperactivity disorder (“ADHD”) and a
learning disability. The earliest entry in the sparse
administrative record is a February 16, 2010 report by
consulting psychologist Dr. Mark Langgut. (R. 158-61.) T.H.
was five years old at the time of the examination. Dr.
Langgut noted that she displayed normal affect, spoke clearly
if somewhat slowly, and was friendly and playful. T.H.
required prompts to count to ten and responded to questions
in a manner that led Dr. Langgut to conclude that her
judgment skills were not age-appropriate. After applying the
Wechsler Preschool and Primary Scale of Intelligence, Dr.
Langgut concluded that T.H. had a full-scale IQ of 77,
placing her in the borderline range of intelligence. She had
an average ability in the area of verbal reasoning and
vocabulary, but T.H. was “relatively impaired” in
visual-constructive skills, in her level of acquired
information, and in her ability to engage in visually-based
learning tasks. (R. 160.) Dr. Langgut diagnosed borderline
intellectual functioning. (R. 161.) However, he did not
believe that T.H. suffered from ADHD at the time of the 2010
February 16, 2012, Plaintiff consulted T.H.'s primary
care physician Dr. Monet Laguerre concerning T.H.'s
problems in paying attention. Plaintiff told Dr. Laguerre
that T.H. could not complete her tasks appropriately and that
she had recently failed unspecified tests at school. (R.
162.) Shortly after that meeting, Dr. Langgut re-examined
T.H. on February 23, 2012 and issued a second report on
February 29, 2012. (R. 166-70.) He noted that T.H. was
inattentive at school, was earning D's and F's in her
second-grade classes, and that an Individual Educational Plan
(“IEP”) was being developed for her at the time
of the interview. (R. 167.) Dr. Langgut noted that T.H. had
few friends at school or in her neighborhood and maintained
poor relationships with her siblings. She was not currently
taking any medication. T.H. showed a moderately heightened
activity level during her interview with the psychologist.
Unlike in 2010, however, her judgment skills were now normal
for a seven year-old child. (R. 168.) Dr. Langgut once again
assessed T.H.'s intellectual functioning by applying the
Wechsler Intelligence Scale for Children. He determined that
her IQ had decreased to 68 since 2010, placing her in the
“extremely low range” of intelligence. (R. 169.)
Her scores for verbal comprehension, perceptual reasoning,
memory, and processing speed were all borderline. Dr. Langgut
again concluded that T.H. suffered from mentally deficient
intellectual functioning. Unlike in 2010, he also determined
that she now suffered from ADHD. (R. 170.)
March 12, 2012, the Horatio May Elementary Academy issued an
IEP for T.H. The plan states that T.H. required
“constant” oversight and redirection, needed help
with phonemic awareness, and should receive individual
attention to help with her math skills. (R. 176.) She ranked
in the twenty-second percentile range for reading and in the
lowest one percent for math. Accordingly, various
accommodations were provided to T.H. concerning language
arts, math, biology, and social sciences. These included
walking by her desk every five minutes to check for accuracy,
extending the time to complete tasks by 25 percent compared
to other children, and providing T.H. an additional 20
percent of time to finish homework assignments. (R. 179-80.)
Most of these services were provided in regular classes; the
only non-mainstreamed class involved 300 minutes of
specialized instruction for math. In total, the IEP required
300 minutes of separate classwork for math, and 860 minutes
of services in regular classes for language arts, biology,
and social sciences. (R. 192.) That meant that only 17
percent of T.H.'s total school time was to take place
outside of regular class settings. (Id.)
March 20, 2012 state-agency expert Dr. Richard Hamersma
issued a childhood disability evaluation form concerning T.H.
for the Social Security Administration. As stated below, Dr.
Hamersma was required under the regulations to assess
T.H.'s functioning in six domains of functioning. He
concluded that she had a marked restriction in her ability to
acquire and use information. Less than marked limitations
were present in the domains of attending and completing
tasks, interacting with others, and caring for herself. No
limitations were present in T.H.'s ability to move about
and manipulate objects or in her health and physical
well-being. (R. 199-200.) Dr. Hamersma therefore concluded
that T.H.'s impairments of ADHD and deficient
intellectual functioning were severe but did not meet,
medically equal, or functionally equal a listed disorder. (R.
197.) State-agency expert Dr. Ronald Havens reaffirmed that
conclusion on June 17, 2012. (R. 203-09.) After these reports
were issued, T.H. was started on the ADHD medication Ritalin
on November 15, 2012 at a dosage level of ten milligrams
three times daily. (R. 212.) That was doubled to 20
milligrams on March 21, 2013, and the ADHD medication
clonidine was added. (R. 214.)
March 22, 2013 a second IEP was issued for T.H. Plaintiff did
not provide a copy of it to the ALJ by the time of the
November 2013 decision. Instead, it was submitted for the
first time to the Appeals Council after Plaintiff obtained
counsel. [Doc. 15, Ex. A.] The IEP states that T.H. struggled
to maintain attention during her classes. She had particular
difficulties in attending to tasks and in transitioning
between subjects and between classes. (Id. at 3.)
Many of the special education services that were included in
the 2012 IEP were expanded under the new plan. T.H. was now
to receive an extra 50 percent in the time allowed for class
assignments and homework. (Id. at 4.) Seating in a
separate area near the teacher was necessary in language
arts, math, biology, and social sciences, so that T.H. could
receive additional redirection, prompts, and cues.
(Id. at 4-7.) Contrary to the 2012 IEP, T.H. was
also removed from regular class settings for significantly
greater parts of each day. She was now to receive 1300
minutes of special education services in separate classes for
language arts, math, biology, and social sciences.
(Id. at 14.) That meant that T.H. would be removed
from mainstreamed classes 62 percent of the time in 2013
instead of 17 percent, as provided for under the 2012 IEP.
The ALJ's Decision
the three-step analytic process described below, the ALJ
found on November 12, 2013 that T.H. was not disabled. He
concluded at step one that T.H. had not engaged in
substantial gainful activity since her application date of
December 31, 2011. (R. 30.) T.H.'s severe impairments at
step two were ADHD and a learning disorder. (R. 30.) These
impairments did not meet or medically equal a listed
impairment at step three. (Id.) Having determined
that, the ALJ then proceeded to decide if T.H.'s
impairments functionally equaled a listing by considering
T.H.'s six domains of functioning. He found that she had
a marked limitation in the domain of acquiring and using
information. (R. 37.) A less than marked restriction was
present in T.H.'s ability to attend and complete tasks,
to interact with others, and to care for herself. (R. 37-41.)
No limitations existed in the domains of moving about and
manipulating objects or physical health and well-being.
(Id.) The ALJ therefore concluded that T.H. was not
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).
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 benefits.
Scott v. Barnhart, 297 F.3d 589, 594 n.5 (7th Cir.
2002). A child is considered disabled under the PRWORA
standard if he “has a medically determinable physical
or mental impairment, which results in marked ...