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Saracco ex rel. T.H. v. Berryhill

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

December 6, 2017

TANYA SARACCO ex rel. T.H., Plaintiff,
NANCY BERRYHILL, Acting Commissioner Social Security, [1] Defendant.


          HON. MARIA VALDEZ, United States Magistrate Judge

         Plaintiff 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 proceedings.


         Plaintiff 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).


         A. School and Medical Records

         T.H. 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 consultation.

         On 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.[2] (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.)

         On 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.)

         On 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.)

         On 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. (Id.)

         B. The ALJ's Decision

         Following 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 disabled.


         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). 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 ...

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