Girondi et al v. Astrue

Filing 30

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 5/6/2011. (gmr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CATHY GIRONDI, o/b/o
A.G., a minor,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No: 09 C 3623
Magistrate Judge Jeffrey Cole

MEMORANDUM AND ORDER
The plaintiff, Cathy Girondi, seeks review of the final decision of the
Commissioner (“Commissioner”) of the Social Security Administration (“Agency”)
denying her minor daughter, Anna Girondi’s application for Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§
1383(c)(3). Ms. Girondi asks the court to reverse and remand the Commissioner’s
decision or remand for consideration of additional evidence, while the Commissioner
seeks an order affirming the decision.
I.
PROCEDURAL HISTORY
Ms. Girondi applied for SSI on behalf of her daughter, Anna, on May 26, 2006.
(Administrative Record (“R.”) 101-03). She claimed she had been disabled since May
23, 2006 (R. 101), due a learning disability. (R. 120). The application was denied
initially and upon reconsideration. (R. 48-53, 60-65). Ms. Girondi continued pursuit of
the claim by filing a timely request for hearing on January 10, 2007. (R. 67).

An administrative law judge (“ALJ”) convened a hearing on October 3, 2008, at
which Ms. Girondi and her daughter, represented by counsel, appeared and testified. (R.
22-47). On November 25, 2008 , the ALJ issued a decision denying the application for
SSI, because Anna did not have an impairment or combination of impairments that met,
equaled or functionally met the Listings. (R. 9-21). Ms. Girondi sought a review of the
decision from the Appeals Council and submitted evidence of educational and
intellectual testing performed between November and December of 2008. (Plaintiff’s
Motion to Remand, ¶¶ 2-3). The Appeals Council denied the request for review without
mentioning the additional evidence, and the ALJ’s decision became the final decision of
the Commissioner on April 17, 2009. (R. 2-3). See 20 C.F.R. §§ 404.955; 404.981.
Thereafter, Ms. Girondi filed another application and, based on the additional evidence
she had provided the Appeals Council earlier, Anna was found disabled as of November
26, 2008.

(Plaintiff’s Motion to Remand, Ex. E). This was the earliest date that Anna

could be found disabled given the previous ALJ’s decision on November 25th. Ms.
Girondi has appealed that previous decision to the federal district court under 42 U.S.C. §
405(g) and has asked that the case be remanded for the consideration of new and material
evidence, mainly that evidence that she had submitted to the Appeals Council and which
formed the basis of the later favorable decision. The parties have consented to the
jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

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II.
EVIDENCE
A.
Evidence the ALJ Considered
Anna was born on July 25, 1994, and was fourteen years old at the time of the
ALJ’s decision. She has a long history of struggles in school, beginning with
kindergarten, which she had to repeat. (R. 185). By the third grade, she was placed in a
learning disabilities resource program due to “extreme academic difficulties.” (R. 185).
These additional resources were increased in fourth grade, and she began to have
language therapy as well. (R. 185). She continued to struggle, however, and in sixth
grade, she had to make a great deal of effort to get “C’s” in her special classes – she was
mainstreamed only in music, art, and gym, and took regular social studies with the help
of a teaching aid. (R. 185).

She was two grades behind in reading decoding (in the

bottom 18% of children her age) and three behind in reading comprehension (bottom
9%), working at the mid-third-grade level in reading composite (bottom 12%), math
computation (bottom 5%), and battery composite (bottom 5%), and her math application
skills were at the mid-first-grade level (bottom 1%). (R. 185). She was a pleasant
student and a hard-worker. (R. 187). It was recommended that Anna be placed in a
learning disabilities program. (R. 188).
Further evaluation revealed that, although twelve-and-a-half years old, Anna had
the single-word comprehension level of an eight year old. (R. 189). Her speech rhythm
was disrupted, and she exhibited garbled productions. (R. 189). She would need Speech
and Language services at school. (R. 189). Anna’s social worker at her school reported

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that she had Anna for thirty minutes of individual counseling and ninety minutes of
group counseling per week. (R. 169). This was the maximum amount available. (R.
170). She had both a speech and language impairment and a learning disability. (R.
169). The social worker said that Anna struggled emotionally and with social skills. (R.
170).
The Agency arranged for a Weschler Intelligence Scale for Children test for Anna
in connection with her mother’s application for SSI in June 2006.

Her verbal

comprehension score was 71, perceptual reasoning score was 69, working memory score
was 77, processing speed score was 85, and full scale IQ was 70. (R. 279). Psychologist
Jeffrey Karr said Anna was pleasant and eager to cooperate – her scores were valid. (R.
281). He diagnosed borderline intellectual functioning. (R. 281).
The Agency also arranged for a speech and Language evaluation in July of 2006.
The speech pathologist, Eileen Donnelly, remarked that Anna was friendly and
cooperative. (R. 284). Anna spoke quickly and had difficulty finding words. (R. 284).
Her speech was generally intelligible, less so when the topic of conversation was
unfamiliar to her. (R. 285). She fared better when instructed to slow down. (R. 285). In
terms of listening comprehension, although she was twelve, Anna exhibited the skills of
six year old. (R. 285). In terms of oral expression, she was the equivalent of a sevenand-a-half year old.

(R. 286).

Ms. Donnelly said these skills were severely and

moderately delayed, respectively. (R. 286). Anna’s total language score was in the
bottom 1%, meaning she was operating at the level of a child aged six years and nine
months. (R. 287).

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In August 2006, Dr. Glen Pittman and speech pathologist Carol Varney reviewed
these two reports on behalf of the Agency. They determined that Anna did not have an
impairment that met, equaled, or was functionally equivalent to the Listing. (R. 288).
They found she was markedly limited in the ability to acquire and use information, and
less than markedly limited in terms of interacting and relating with others. (R. 290).
Anna underwent a psychological evaluation at school in October of 2006, when
she had just begun the sixth grade. (R. 191).

Psychologist Allan Lang administered a

Weschler Intelligence Scale for Children. Anna scored in the bottom 6% of children her
age in verbal comprehension (score of 77 – higher than the June 2006 score), the bottom
18% in perceptual reasoning (66 – lower), the bottom 21% in working memory (88–
higher), the bottom 13% in full scale IQ (83 – higher). (R. 192). She was in the fiftieth
percentile terms of processing speed (100). (R. 192). She was in the bottom 5% in
reading (76), bottom 12% in written expression (82), bottom 0.5% in mathematics (61),
and bottom 1% in reading comprehension (65). (R. 193). Dr. Lang commented that
Anna did not have any strengths in academic achievement, but had made progress in
numerical operations since 2003.

(R. 195).

She had regressed in math reasoning,

however. (R. 195). She seemed to be “successful in her self-contained cross-categorical
special education placement. (R. 195). He recommended that “appropriate intervention”
be considered. (R. 195).
In December 2006, Leon Jackson, Ph.D., and speech pathologist Michelle Curran
reviewed the record with the same reports as Dr. Pittman and Ms. Varney had six months
earlier and arrived at the same conclusion. (R. 303-308). They didn’t consider Dr.
Lang’s report. (R. 308).

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In December of 2006, Anna’s teacher, Susan Szubert, completed a checklist
regarding Anna’s limitations. Ms. Szubert noted that, while Anna was in the sixth grade,
she was reading and performing math computations at a fourth grade level, doing math
applications at a second or third grade level, and writing at a third grade level. (R. 173).
Anna received special educational services for about 70% of the day. (R. 173). Ms.
Szubert indicated that Anna had a problem acquiring and using information, which
included obvious problems in comprehending oral instructions, reading and
comprehending written material, comprehending and doing math problems, providing
oral explanations, expressing ideas in writing, learning new material, recalling and
applying previously learned material, and applying problem-solving skills. (R. 174).
There was also a problem in the area of caring for oneself, including slight problems with
personal hygiene, identifying and asserting emotional needs, and using coping skills in
the school environment. (R. 178). Ms. Szubert did not note any limitations in attending
and completing tasks, interacting and relating with others, or moving about and
manipulating objects.
On her fall report card from 2008, Anna got B+ in Language and Literature, B in
Science, C’s in Academic Supplement, Physical Education, and Social Studies, and D in
Math. (R. 313). She was having trouble preparing for classes and completing assignments
on time. (R. 313). Anna was reading at a level that was well below average. (R. 314).
B.
Administrative Hearing Testimony
At her hearing, Anna told the ALJ that she was in eighth grade and was taking
Science, Literature, Language, Social Studies, and Gym. (R. 29). Her class had ten

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children and two teachers. (R. 28, 34). She said she wasn’t reading “chapter books” yet,
just “big ones” with “different pages.” (R. 29-30).

Anna said she “mostly can’t read.”

(R. 36). She didn’t read at home because her mother couldn’t help her; her mother was
unable to read. (R. 36-37). Anna wasn’t able to write cursive yet either. (R. 30). Anna
made “five or ten” friends at school. (R. 30). Her friends came over to her house, or she
went to theirs to play video games. (R. 30-31). Anna said she had a journal she tried to
write songs in. (R. 31-32). She played with her puppy. (R. 32). She liked playing
basketball in gym. (R. 33).
Ms. Girondi testified that when she was pregnant with Anna, she was beaten
everyday. (R. 39). Anna was born prematurely, and had crooked hands and a problem
with her knee. (R. 39). Ms. Girondi was on SSI. (R. 39). She couldn’t afford tutors for
Anna. (R. 40). Ms. Girondi felt bad because she couldn’t do anything for Anna and
didn’t want Anna to be like her. (R. 40). Anna had to do her homework at school where
the teachers could help her. (R. 43). Anna had trouble remembering things and couldn’t
focus.

(R. 43-44).

Ms. Girondi’s attorney informed the ALJ that Anna would be

undergoing further testing a couple of weeks after the hearing, and the ALJ said he would
leave the record open for thirty days. (R. 28-29). When the attorney said that he wasn’t
sure if the results would be in by then, the ALJ indicated he could have more time if it
was needed. (R. 29). On November 10th – the hearing had been on October 3rd – counsel
wrote to the ALJ to tell him that the results would not be available until January. (R.
312). Counsel added a request for a supplemental hearing when the results were made a
part of the record, with a medical advisor. (R. 312). The ALJ issued his decision two
weeks later, before the results were completed. (R. 21).

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C.
Evidence Submitted After the Hearing
On her eighth-grade evaluation in October 2008, Anna continued to lag years
behind other children her age. Her composite score was in the bottom 3% of children her
age. Her English score was in the bottom 10%. She scored in the bottom 2% in math,
the bottom 29% in reading, and the bottom 10% in science. The courses she was going
to take in high school, given her limited abilities, fell far short of the recommended high
school curriculum. (Ex. A)
Anna’s course plan for the autumn of 2009 had her in a self-contained, special
education classroom for every subject but physical education. For the next school year,
she would take physical education classes and choir with special assistance.

Anna

needed instruction in small group settings, that was slow-paced and offered the
opportunity for re-teaching. Even with a supplementary help, Anna would not be able to
keep up the pace required in a regular classroom.
Anna had another intelligence evaluation in March 2010. Her full-scale IQ was
65. During the testing, Anna required repeated instructions. She tried hard, but tended
to perservate. Anna needed reminders about hygiene and was unable to complete chores.
She could not count change or remember phone messages. She had friends, but they
were younger than she. Anna was diagnosed as mildly retarded.
III.
THE ALJ’S DECISION
The ALJ stated that Anna, born on July 25, 1994, was a school-aged child on the
date of her SSI application and was currently an adolescent. (R. 12). He found that she

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suffered from a severe impairment: borderline intellectual functioning. (R. 12). The ALJ
concluded that Anna's impairment did not meet or equal the requirements of any listed
impairment, stating:
With respect to listing 112.02 [Organic Mental Disorders], while the
record suggests some impairment in cognitive functioning, the claimant is
not markedly impaired in cognitive functioning, social functioning,
personal functioning, or with respect to concentration, persistence or pace.
With respect to listing 112.05 [Mental Retardation], while the claimant’s
counsel argued that testing from June 28, 2006 suggested a full scale IQ of
70 thereby satisfying the initial criteria of 112.05E, subsequent IQ testing
conducted on October 19, 2006 showed a full scale IQ of 83.
Additionally, with respect to the additional criteria required to satisfy
listing 112.05E, the undersigned cannot conclude that the claimant is
markedly impaired in social functioning, personal functioning, or with
respect to concentration, persistence or pace.
(R. 12). The ALJ said his conclusion was bolstered by the reports of the reviewing state
agency physicians. (R. 12).
The ALJ went on to determine that there was no functional equivalence to a listed
impairment, specifically finding that Anna had a less than marked limitation in
"acquiring and using information" (R. 14-15); a less than marked limitation in "attending
and completing tasks" (R 16-17); a less than marked limitation in "interacting and
relating with others" (R 17-18); no limitation in "moving about and manipulating
objects" (R 18-19); no limitation in “caring for oneself” (R. 19-20); and no limitation in
"health and physical well being." (R 20-21).
In reaching these conclusions, the ALJ reviewed Anna’s test scores and grades.
(R. 15-16). He noted that other than a D in math, she had a B average on her most recent
report card. (R. 15). The ALJ remarked that Anna’s IQ score was significantly higher in
November 2006 than it had been in June 2006. (R. 15). He said that Anna’s strengths
were in reading fluency, spelling, and math computations; her weaknesses were in

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reading comprehension and math application. (R. 15). He looked to her mother’s report
of academic improvement, her teacher’s report of improvement in math, and Dr. Lang’s
remark that she was doing well in her self-contained, special education classes. (R. 15).
The ALJ rejected the opinions of the state agency physicians who had all found Anna
markedly limited in acquiring and using information. (R. 15). The ALJ also pointed to a
report from Anna’s teacher that she had no problem completing tasks and her mother’s
statement to school evaluators that she does her homework without being reminded, and
the school evaluators statement that she completes all her homework and studies for
assigned tests. (R. 16). The ALJ further stated that Anna testified that she had friends
over or visited them at their homes, and her teacher reported she had no problem
interacting with others, and reviewed the results of Anna’s session with the speech
pathologist. (R. 18). He noted Anna needed reminders about hygiene, but that she kept a
journal, wrote song lyrics, and interacted with friends and family. (R. 20). Accordingly,
the ALJ found that Anna had no marked limitations in any domain, and that she was not
disabled under the Act. (R. 21).
IV.
DISCUSSION
A.
Standard of Review
The applicable standard of review of the Commissioner’s decision is a familiar
one. The court must affirm the decision if it is supported by substantial evidence. 42
U.S.C. §§ 405(g). Substantial evidence is such relevant evidence as a reasonable mind
might accept to support a conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008),

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citing Richardson v. Perales, 402 U.S. 389, 401 (1971). The court may not reweigh the
evidence or substitute its judgment for that of the Social Security Administration.
Berger, 516 F.3d at 544; Binion on Behalf of Binion v. Chater, 108 F.3d 780, 782 (7th
Cir. 1997). Where conflicting evidence would allow reasonable minds to differ as to
whether the plaintiff is disabled, the Commissioner has the responsibility for resolving
those conflicts. Binion, 108 F.3d at 782. Conclusions of law are not entitled to such
deference, however, so where the Commissioner commits an error of law, the court must
reverse the decision regardless of the volume of evidence supporting the factual findings.
Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007).
While the standard of review is deferential, the court cannot act as a mere “rubber
stamp” for the Commissioner’s decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002). In order for the court to affirm a denial of benefits, the ALJ must “minimally
articulate” the reasons for his decision. Berger, 516 F.3d at 544; Dixon v. Massanari,
270 F.3d 1171, 1176 (7th Cir. 2001). This means that the ALJ “must build an accurate
and logical bridge from [the] evidence to [the] conclusion.” Dixon, 270 F.3d at 1176;
Giles ex rel. Giles v. Astrue, 483 F.3d 483, 486 (7th Cir. 2007). Although the ALJ need
not address every piece of evidence, the ALJ cannot limit his discussion to only that
evidence that supports his ultimate conclusion. Herron v. Shalala, 19 F.3d 329, 333 (7th
Cir. 1994). The ALJ’s decision must allow the court to assess the validity of his findings
and afford the plaintiff a meaningful judicial review. Scott, 297 F.3d at 595. In other
words, as with any well-reasoned decision, the ALJ must rest a denial of benefits on
adequate evidence contained in the record and must explain why contrary evidence does
not persuade. Berger, 516 F.3d at 544.

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B.
Sequential Analysis
A child is disabled under the Act if she has a “physical or mental impairment,
which results in marked and severe functional limitations, and . . . has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
1382c(a)(3)(C)(I). Whether a child meets this definition is determined via a multi-step
inquiry. 20 C.F.R. § 416.924(a); Murphy v. Astrue, 496 F.3d 630, 633 (7th Cir. 2007);
Giles ex rel. Giles v. Astrue, 483 F.3d 483, 486-87 (7th Cir.2007). At the outset, if the
child is engaging in substantial gainful activity, the claim will be denied. Murphy, 496
F.3d at 633; Giles, 483 F.3d at 486. Next, if she does not have a medically severe
impairment or combination of impairments, the claim will be denied. Murphy, 496 F.3d
at 633; Giles, 483 F.3d at 486. Finally, the child's claim will be denied unless her
impairment meets, or is medically or functionally equivalent to, one of the listed
impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Murphy, 496 F.3d at 633; Giles, 483
F.3d at 486-87.
The determination of functional equivalency involves a further analysis of the
child’s condition in the context of six “domains” or categories, from an age-appropriate
standpoint: 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), (b)(1);
Murphy, 496 F.3d at 633; Giles, 483 F.3d at 487. A child’s impairment is functionally
equivalent to the listings, meaning the child qualifies for benefits, if the ALJ finds she
has marked difficulty in two domains of functioning or an extreme limitation in one. 20

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C.F.R. § 416.926a(a); Murphy, 496 F.3d at 633; Giles, 483 F.3d at 487. A marked
limitation is one which interferes seriously with the child's ability to independently
initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2)(i); Giles, 483 F.3d at
487. It is further defined as “more than moderate, but less than extreme,” and can be
demonstrated by standardized test “scores that are at least two, but less than three
standard deviations below the mean.”

20 C.F.R. § 416.926a(e)(2)(i).

An extreme

limitation is present where the results of a standardized test are three or more standard
deviations below the norm for the test, or when an impairment interferes very seriously
with the child's ability to independently initiate, sustain, or complete activities. See 20
C.F.R. § 416.926a(e)(3).
C.
There are troubling aspects of the decision denying Anna SSI. To begin with, the
ALJ indicated that he would keep the record open for the presentation of additional test
results. Now, to be sure, counsel was late in contacting the ALJ for additional time – the
ALJ had given counsel thirty days, and counsel apparently did not write for additional
time until thirty-seven days had passed. But at the close of the hearing the ALJ seemed
amenable to giving counsel whatever time it took to get the results, and the ALJ did
know that the test results would be forthcoming before he rendered his decision about
three weeks later.
The treatment of this additional evidence became a bit more disconcerting when
counsel submitted it to the Appeals Council in support of a request for review of the
ALJ’s decision. The decision of the Appeals Council on a request for review invariably
lists the additional materials considered, but there was no mention of any additional

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evidence in the action on Anna’s claim. (R. 4). Moreover, it was not included in the
record, so it would appear that the Appeals Council simply ignored it or that is was lost
somewhere in the bureaucratic morass. See Eads v. Secretary of Dept. of Health and
Human Services, 983 F.2d 815, 817 (7th Cir. 1993)(even when the Appeals Council
denies review the additional evidence should be a part of the administrative record).
Under the regulations, the Appeals Council must “evaluate the entire record,”
including “new and material evidence,” in determining whether to grant review. 20
C.F.R. § 404.970(b); Sims v. Apfel, 530 U.S. 103, 111 (2000). It appears that the Appeals
Council didn’t do that here; it may not have even looked at the evidence to determine if it
was new and material. At a hearing following the briefing of this case, no explanation
was forthcoming for these apparent missteps from the Commissioner. So the reviewing
court is left to wonder.
Sentence six of 42 U.S.C. §405(g) allows a remand to the agency “upon a
showing that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.” “New”
evidence is evidence which was “not in existence or available to the claimant at the time
of the administrative proceeding.” Simila v. Astrue, 573 F.3d 503, 522 (7th Cir. 2009);
Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir.1997). The additional evidence in this
case is clearly new: the test results simply weren’t available before the ALJ’s decision.
And, it might be argued, the ALJ’s action prevented that availability.
New evidence is ‘material’ if there is a ‘reasonable probability’ that the ALJ
would have reached a different conclusion had the evidence been considered.” Simila,
573 F.3d at 522; Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir.2005). Here, in one

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respect, even the Commissioner thought this evidence was material. After a second
application and another round of administrative proceedings, a second adjudicator
determined that the plaintiff was disabled and entitled to SSI due to mental retardation.
The additional evidence that seemed to be avoided in the first round was a key factor in
this second, conflicting decision. “Conflicting” is a term used advisedly because an
impairment such as mental retardation does not manifest spontaneously but is rather a
lifelong condition. Guzman v. Bowen, 801 F.2d 273, 275 (7th Cir.1986). A person’s IQ
is presumed to remain stable over time absent any evidence suggesting a change in level
of functioning. Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001); Branham v. Heckler,
775 F.2d 1271, 1274 (4th Cir. 1985).1 Indeed, the second adjudicator acknowledged as
much in her decision granting benefits, but was constrained by the earlier, conflicting
decision to find the plaintiff’s onset of disability to be the day after the previous decision.

Obviously, it the plaintiff did not suddenly “come down” with mental retardation
of a disabling degree on November 26, 2008, but was not markedly impaired the day

1

The Commissioner argues that a sentence-six remand is inappropriate because much of the
additional evidence relates to the time period after the date of the ALJ’s decision. The Commissioner
relies on Getch v. Astrue, 539 F.3d 473 (7th Cir. 2008) and Schmidt v. Barnhart, 395 F.3d 737 (7 th Cir.
2005) for support. Although Getch and Schmidt state that medical evidence is not material if it
postdates the ALJ’s decision, generally speaking, the cases also make an exception for evidence that
nonetheless “speaks to the patient’s condition at or before the time of the administrative hearing.”
Getch, 539 F.3d at 484; Schmidt, 395 F.3d at 742 (evidence relating to condition at the time
application was under consideration can be material). Notably, the evidence found to be immaterial
in those cases related to a condition that had worsened since the ALJ’s decision. Getch, 539 F.3d at
484; Schmidt, 395 F.3d at 742.
Here, the evidence under consideration concerns Anna’s level of mental functioning – her
IQ and her degree of mental retardation, which is a lifelong condition. Guzman v. Bowen, 801 F.2d
273, 275 (7th Cir.1986). So, for example, Anna’s full-scale IQ score of 65 in March 2010 is relevant
to her condition prior to the ALJ’s decision. The Commissioner – or the Appeals Council or the ALJ
– can’t disregard it simply because the test was taken after the ALJ’s decision.

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before. She certainly didn’t begin functioning several grade levels below what she
should be on that date either. Moreover, under cases like Guzman, evidence regarding
such an impairment would relate back to the plaintiff’s condition when the first
adjudicator was evaluating her claim for SSI. So, this additional evidence certainly
appears to be the type that would have a reasonable probability of altering the ALJ’s
decision. The Commissioner has determined it shows Anna is disabled.2
In another respect, it is not so clear this evidence would have changed the ALJ’s
mind if he had considered it. After all, it essentially reaffirms that Anna is far behind her
peers in a number of academic areas. But the evidence that the ALJ allowed into the
record already confirmed that. The additional evidence, however, added certain elements
that may not have been entirely clear before. For example, although Anna does socialize,
she does not do so with children her own age. She seems to have more and more
difficulty keeping up and finishing her assignments. She doesn’t seem to be gaining
ground. The ALJ in this case, however, might not have thought any of the evidence was
persuasive, whether it should have been or not. But his decision was flawed in enough
aspects that it would have to be remanded anyway.
The ALJ determined that Anna had a “less than marked” impairment in acquiring
and using information. In so doing, he rejected the assessments of two medical experts
whom the disability agency assigned to review Anna’s case.

2

Instead, he based his

Because an ALJ’s decision need only be supported by substantial evidence, it is possible that two
different adjudicators could reach different conclusions based on the same record, and both results
would be supported by substantial evidence. But this is not an argument the Commissioner made
when asked to account for the conflicting decisions regarding Anna’s application in a hearing on
December 3, 2010. Accordingly, any such the contention is forfeited. United States v. Knox, 624
F.3d 865, 873 n.6 (7 th Cir. 2010).

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assessment on Anna’s performance in her special education classes eight grade. With the
exception of one D in math, he noted, she was getting a B average – actually, a 2.6. He
said that her mother described her as doing well in school during a phone interview. And
teachers reported she was improving in math. (R. 15).
In reaching this conclusion, the ALJ ignored significant facts: Anna was held
back for one year in school, so at the time she was in eighth grade, she ought to have
been a freshman in high school. Throughout her schooling, she has performed a number
of grade levels behind the expected level. In sixth grade – when she was actually of
seventh-grade age, her reading comprehension was that of a third-grader. (R. 186). Her
use of math skills was the equivalent of a first-grader. (R. 186). Overall, she performed
at a level expected of a third-grade student. (R. 186). There is no information regarding
what grade level she was performing at when she was in eighth grade, but she was in
small, special education classes all day. The applicable regulation makes a “structured
setting” a part of calculus in a child’s disability determination.

See 20 C.F.R. §

416.924a(b)(5)(iv)(B);(C). The ALJ noted that Anna was in special education, but the
fact that he put so much stock in her B’s and C’s shows he really didn’t take the reality of
the situation into account. He’s not allowed to simply ignore such evidence. Terry v.
Astrue, 580 F.3d 471, 477 (7th Cir. 2009); Villano v. Astrue, 556 F.3d 558, 563 (7th
Cir.2009).
Anna is four and five grades behind other children her age. She requires special
assistance in small classes to get those B’s and C’s and D’s. Her improvement in math is
relative – she was the equivalent of a first-grader when she should have been performing
at a seventh grade level. The fact that her mother was hopeful about her progress is

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meaningless in this calculus. What else would her mother – who is also mentally
challenged and on disability – be expected to say? Her teachers give her glowing reports
because she tries very hard and wants to do better and is a pleasant student to have in the
class. But, clearly, her performance in her special education classes does not support the
ALJ’s determination that she has a less than marked impairment in her ability to acquire
and use information.
Much the same can be said of the ALJ’s determination that Anna had a less than
marked limitation on her ability to interact with others. The ALJ based this conclusion
on testing related to Anna’s speech intelligibility, the existence of friends, and her
participation in class. (R. 18). In reaching this conclusion, ALJ ignored a significant
piece of evidence. Anna’s speech may be intelligible, but evaluations indicate that, in
terms of listening comprehension, she only had the skills of a child half her age. (R.
285). In terms of oral expression, she was only slightly better. (R. 286). Her overall
language abilities were in the bottom 1% of children her age. So, a fourteen-year old
might speak intelligibly, but if it is the intelligible speech of a seven-year old, that would
seem to be quite a deficit.

The ALJ failed to consider this at all, and so the

underpinnings of his determination regarding Anna’s ability to interact with others is
compromised.
Moreover, the ALJ failed to take into account that, while Anna has friends, they
are all younger than she. This may or may not have been apparent from the record before
the ALJ – although the ALJ didn’t ask Anna how old her friends were – but it is made
clear in the additional evidence. It’s a significant piece of information because, under the
regulations, an ALJ has to consider whether a child has friends of her own age. 20

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C.F.R. §§416.926a(i)(2)(v); 416.926a(i)(3)(ii).

Because he failed to consider these

factors, the ALJ’s finding regarding Anna’s ability to interact with others is flawed as
well. Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009); Villano v. Astrue, 556 F.3d 558,
563 (7th Cir.2009).
As a result, when all the available evidence is considered, it may well be that
Anna is actually markedly limited in at least two areas – areas in which the ALJ felt she
had a “less than marked limitation.”

If she is markedly limited in two domains, she

would be disabled in terms of functional equivalency to the listings. Indeed, it may well
be that, when the additional evidence is considered, the ALJ will determine that Anna
actually meets listing 112.05 for mental retardation.
CONCLUSION
The plaintiff’s motion for reversal and remand [#18, 20] is GRANTED, and the
Commissioner’s motion for summary judgment is DENIED. This matter is remanded to
the Commissioner for further proceeding consistent with this opinion, including the
consideration of additional evidence pursuant to sentence six of §405(g).

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 5/6/11

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