Claiborne, ex. rel. L.D., minor v. Astrue

Filing 43

MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 1/24/2012: Mailed notice. (is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALISHA CLAIBORNE ex rel., L.D., a
minor,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 10 C 7728
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiff Alisha Claiborne is seeking to recover Supplemental Security Income (“SSI”)
on behalf of her minor daughter, L.D., under Title IX of the Social Security Act. 42 U.S.C.
§ 1382c(a)(3)(C). The Commissioner of Social Security (“Commissioner” or “Defendant”)
denied the application for benefits at all levels of administrative review, prompting this
appeal. The parties have consented to the jurisdiction of the United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c), and have now filed cross-motions for summary
judgment. After careful review of the record, the Court grants Plaintiff’s motion, denies
Defendant’s motion, and remands the case for further proceedings.
PROCEDURAL HISTORY
Plaintiff applied for SSI on November 21, 2004, alleging that her then-20-month-old
daughter L.D. had been disabled since birth due to asthma. (R. 47-48). The Social
Security Administration (“SSA”) denied the application initially on April 26, 2005, and again
on reconsideration on July 11, 2005. (R. 55-59, 63-66). Following a November 9, 2006
hearing, Administrative Law Judge Cynthia M. Bretthauer (the “ALJ”) found on December

26, 2006 that L.D. was not entitled to any benefits. (R. 13-26). Plaintiff sought judicial
review of the ALJ’s decision, and the parties agreed on December 15, 2008 to remand the
case for further proceedings.

Claiborne v. Astrue, No. 08 C 2775, Doc. 34.

In

conformance with the district court’s remand Order, the Appeals Council vacated the earlier
ruling and instructed the ALJ to: update the medical and school records; further evaluate
L.D.’s speech/language disorder; expressly consider L.D.’s sleep apnea and obesity; and,
if necessary, obtain testimony from a medical expert (“ME”) to clarify the nature and
severity of L.D.’s impairments. (R. 295-96).
The ALJ held a second hearing on September 21, 2010. Plaintiff and L.D. both
testified in the presence of counsel, and Dr. Sai R. Nimmagadda appeared as an ME. (R.
487-543). Less than a month later, on October 5, 2010, the ALJ concluded that L.D. is not
disabled within the meaning of the Act because she does not have an impairment or
combination of impairments that functionally equals the relevant listings. (R. 272-88).
Plaintiff once again seeks judicial review of the ALJ’s decision, which stands as the final
decision of the Commissioner.
In support of her request for a remand, Plaintiff argues that the ALJ erred in
analyzing two domains of L.D.’s functioning: interacting and relating with others, and caring
for yourself. With respect to the first domain, Plaintiff argues that the ALJ (1) failed to
properly evaluate SSR 98-1p in finding that L.D. does not have a marked or extreme
limitation in speech and language functioning; (2) failed to clarify whether the ME
adequately considered SSR 98-1p in formulating his opinion; (3) erred in finding that L.D.’s
oppositional defiant disorder is only a marked and not extreme limitation; and (4) failed to
compare L.D. to children without impairments as required by SSR 09-1p. Plaintiff claims
2

that the ALJ further erred in her analysis of the caring for yourself domain by (5) once again
failing to compare L.D. to children without impairments; and (6) failing to consider all of
L.D.’s impairments in combination. In addition to these arguments, Plaintiff also objects
that the ALJ (7) violated the law of the case doctrine by finding that L.D. had a less than
marked limitation in the domain of health and physical well-being; and (8) failed to make
a credibility determination regarding Plaintiff’s testimony.
As discussed below, the Court agrees that the ALJ failed to properly analyze
whether L.D. had a marked limitation in speech prior to September 1, 2009, requiring a
remand. The ALJ should also clarify whether the ME was familiar with and considered all
relevant Rulings and regulations, and whether L.D.’s self-injurious behavior as noted in
March 2010 had any impact on her ability to care for herself after March 2010.
FACTUAL BACKGROUND
L.D. was born on February 16, 2003. (R. 275). Her seven-month check-up on
August 25, 2003 was normal and she was in the 90th percentile for weight. (R. 134, 135).
At some point that year, however, L.D. started exhibiting asthma symptoms and began a
regimen of Nasonex, Singulair, Pulmicort and an Albuterol nebulizer. (R. 102).
A.

Medical History
1.

Age 1 to Age 3 (February 16, 2004 to February 16, 2006)
a.

Age 1

On March 30, 2004, Plaintiff filled out a Child Medical Questionnaire on behalf of
L.D. at the Children’s Hospital of Wisconsin. (R. 225-28). Plaintiff indicated that L.D.’s
family physician, Dr. Michael Mann, had referred her to the hospital due to asthma and

3

related breathing problems. (R. 225). Plaintiff reported that L.D.’s overall health was “very
good,” but that she had problems with congestion, snoring, mouth breathing, coughing and
waking up at night with difficulty breathing. (R. 227-28). Dr. Margaret M. Lowery examined
L.D. and found her nasal passages to be boggy and congested. L.D. exhibited some
wheezing and rhonchi, and Dr. Lowery diagnosed her with mild persistent asthma and
rhinitis. (R. 229-32). In a report of findings to Dr. Mann, Dr. Lowery indicated that L.D.
suffered from mild persistent asthma with exacerbation, vasomotor rhinitis and possible
allergic rhinitis. (R. 164-65). She recommended that L.D. take Prelone, Pulmicort,
Albuterol and Zyrtec, and scheduled her for some x-rays. (R. 165).
L.D.’s April 6, 2004 lateral radiograph of the neck showed her adenoids to be “in the
upper limits of normal in size.” (R. 162). At a follow-up examination on June 8, 2004, Dr.
Lowery confirmed L.D.’s diagnosis of mild persistent asthma and non-allergic rhinitis. She
also noted that L.D. had adenoid hypertrophy, and recommended that she follow up with
an ENT (ear, nose and throat) specialist. (R. 161).
Several months later on August 27, 2004, Plaintiff took L.D. to see Dr. Manfred Man
of the Robert R. McCormick University Clinics. Dr. Man reported that L.D.’s physical
examination was normal, though she was still on Zyrtec and Albuterol for her asthma. (R.
138, 141). On October 19, 2004, Plaintiff took L.D. to the emergency room at Lake Forest
Hospital because she had a fever, nasal congestion and difficulty breathing. (R. 167). Dr.
Irina Trosman diagnosed L.D. with influenza and kept her in the hospital overnight due to
a concern about enlarged tonsils and airway obstruction. (R. 166, 168). L.D.’s asthma was
“under good control” but Dr. Trosman observed that she suffered from apnea. (R. 170-71).

4

Dr. Trosman discharged L.D. on October 20, 2004 with instructions to follow up with an
ENT and Dr. Man. (R. 177).
Less than a week later, on October 25, 2004, Dr. Stephen F. Conley evaluated L.D.
at the request of Dr. Lowery. In addition to the asthma, Dr. Conley found that L.D. had
“upper airway obstruction due to adenotonsillar hypertrophy,” and recommended that she
have a tonsillectomy and adenoidectomy. (R. 224). Plaintiff took L.D. back to Dr. Lowery
the next day with continued complaints of nasal congestion. Dr. Lowery again diagnosed
mild persistent asthma and rhinitis, along with acute sinusitis and adenoid hypertrophy. (R.
155-57). She adjusted L.D.’s medication and noted that she was scheduled for surgery in
three weeks. (R. 155, 157).
In anticipation of filing an application for SSI, Plaintiff completed a “Function Report Child Age 1 to 3rd Birthday” on behalf of L.D. on October 28, 2004. (R. 79-84). Plaintiff
reported that L.D., who was 20 months old at the time, was unable to talk and was “hardly
ever” understood even by people who knew her well. (R. 81). She was able to wave “byebye,” follow one- and two-step directions, and listen to stories being read for at least 5
minutes, but she did not play “pat-a-cake,” use one or more words, play “pretend,” use her
own name or refer to herself, or know the parts of the body and face. (R. 82). Plaintiff
stated that with respect to physical activities, L.D. could “do most things as a 1 ½ year old,”
but she tired easily due to shortness of breath. (R. 83). L.D. was able to drink from a cup
without help and feed herself with a spoon, and she tried to be friendly with other children.
She would not cooperate in getting dressed and brushing her teeth, however, and she was
unable to get undressed by herself. (R. 84).

5

On December 1, 2004, Dr. Conley performed surgery to remove L.D.’s adenoids and
tonsils. (R. 148-53). Approximately one week later on December 9, 2004, Plaintiff
completed another “Childhood Function Report - 1 to 3 Years” for L.D., who was then
nearly 22 months old. (R. 86-89). L.D. was able to ask for objects by pointing, but did not
understand simple phrases, imitate housework, refer to herself by name, know her age or
sex, or put 2 to 3 words together to form a thought. She showed interest in playing with
simple games and toys, and paid attention while looking at picture books or listening to
stories. She also cooperated with caregivers in dressing and other self-care, gave kisses
and hugs upon request, smiled in response to praise, played simple games, and played
alongside other children. (R. 86). Yet she could not watch a 30-minute children’s show,
complete an activity such as coloring, puzzles or games, respond to the feelings of others,
or communicate her needs beyond gestures. (R. 86-87). In the areas of moving about and
caring for herself, L.D. was able to walk with one hand held, climb on furniture, play with
blocks and toys and feed herself with her hands. She could also drink from a cup without
assistance, and she showed interest in toilet training and exhibited independence by saying
“no” or hoarding toys. (R. 87-88).
L.D. saw Dr. Conley on December 21, 2004 for a post-operative evaluation. She did
not have any bleeding and her snoring was “resolved” at that time. (R. 147). The following
month, on January 18, 2005, L.D. returned to Dr. Lowery with congestion, coughing and
a mild exacerbation of her moderate persistent asthma. Dr. Lowery adjusted L.D.’s
medications and instructed her mother to bring her back in three months. (R. 144-46).

6

b.

Age 2

On March 3, 2005, Plaintiff took L.D. to see Dr. Man because she had a cough, cold
and fever, but the doctor’s notes are largely illegible. (R. 141-42). On April 12, 2005, Dr.
Padma Talcherkar completed a Childhood Disability Evaluation Form for the SSA. She
found L.D. to have a less than marked limitation in the domain of Health and Physical WellBeing, noting that L.D. had “shown only mild exacerbations” in her asthma, and did not
require repeated hospitalizations, treatments or ER visits. Dr. Talcherkar determined that
L.D. had no limitations in any domain. (R. 179-84).
Plaintiff completed another “Childhood Function Report - 1 to 3 Years” on behalf of
L.D. on June 3, 2005. The report was nearly identical to the one Plaintiff filled out on
December 9, 2004, except that at 27 months old, L.D. could now understand simple
phrases, refer to herself by name, communicate wishes and needs usually by gestures,
walk down stairs alternating feet, and try to do simple dressing. (R. 90-93). She continued
to cooperate with caregivers, feed herself with her hands, drink from a cup unassisted, and
show independence. (Id.).
A little more than a month later, on July 9, 2005, Dr. Raymond Castaldo
reconsidered Dr. Talcherkar’s assessment of L.D.’s limitations for the SSA.

In his

Childhood Disability Evaluation Form, Dr. Castaldo agreed that L.D. had no limitations in
the domains of Acquiring and Using Information, Attending and Completing Tasks,
Interacting and Relating with Others, Moving About and Manipulating Objects, and Caring
for Yourself. (R. 199-202). He found, however, that L.D. had a marked (as opposed to less
than marked) limitation in the domain of Health and Physical Well-Being based on her

7

history of asthma and certain other medical problems. (R. 202). This still resulted in a
finding of no disability. (R. 204).
On July 12, 2005, L.D. saw Dr. James Lustig at the Children’s Hospital of Wisconsin.
(R. 221-23). L.D. was doing well during the day, but she had trouble breathing at night and
would wake up snoring. (R. 221). Dr. Lustig stated that L.D.’s mild intermittent asthma was
“controlled,” and recommended that she have a sleep study to rule out apnea. (R. 223).
Four days later on July 16, 2005, Dr. Milford Schwartz completed a Case Analysis on L.D.
for the SSA. He noted that as of March 2005, L.D.’s physical growth and development
were normal, and he agreed with Dr. Castaldo’s assessment that she had “no more than
marked limitations confined to a single domain, #6 [Health and Physical Well-Being].” (R.
205).
Plaintiff failed to take L.D. to a scheduled appointment on August 16, 2005, but in
a September 29, 2005 request for a hearing before an ALJ, she claimed that L.D.’s asthma
and development continued to be a “big issue,” especially at night. (R. 49). When Plaintiff
took L.D. for a follow-up visit with Dr. Lustig on December 20, 2005, L.D. was still doing fine
during the day but struggling with snoring at night. Dr. Lustig assessed controlled moderate
persistent asthma and scheduled L.D. for a sleep study in January 2006 to rule out apnea.
(R. 218, 220). Nine days later, on December 29, 2005, L.D. had to be taken to the Lake
Forest Hospital ER for acute asthma exacerbation. (R. 209-11). Dr. Mark Mass observed
that L.D.’s asthma symptoms had been managed and “easily treated at home” with
Albuterol, and described this episode as “a typical asthma attack” that was subsequently
cleared and resolved. (R. 210-11).

8

L.D. had a sleep study on February 8, 2006, shortly before her third birthday. The
results were abnormal, showing moderate to severe obstructive sleep apnea. (R. 206-08).
Dr. Lynn A. D’Andrea recommended consideration of a repeat adenoidectomy and
“additional management of [L.D.’s] nasal congestion or allergic rhinitis.” (R. 207-08).
2.

Age 3 to Age 6 (February 16, 2006 to February 16, 2009)
a.

Age 3

On February 24, 2006, L.D. had a district preschool screening that raised concerns
in the areas of behavior, fine and gross motor skills, visual perception, learning styles,
language comprehension and expression, articulation and attention span. (R. 104, 123).
L.D. passed her vision and hearing screening, but she was referred to the offices of the
Special Education District of Lake County for “psychoeducational, speech/language, and
physical therapy evaluations.” (R. 123, 125). The resulting April 24, 2006 Individualized
Education Plan (“IEP”) was based on testing performed by a six-member Multidisciplinary
Evaluation Team (the “IEP Team”) on April 10, 11 and 17, 2006, and information provided
by Plaintiff in a February 27, 2006 Case History and a telephone interview. (R. 123, 125).
The IEP Team found that L.D. was able to attend to a variety of activities in both a
structured and unstructured setting, and that she was socially and verbally engaging. Her
auditory and visual attending and visual scanning were appropriate, she demonstrated age
appropriate receptive language skills, and she communicated using multi-word utterances.
L.D. also showed age appropriate cognitive and pre-academic skills and gross and fine
motor performance, and her play and social interaction skills were “developing nicely.” (R.
129). L.D. did have some special needs, however.

9

In the area of Speech and Language Evaluation/Interpretation, L.D.’s receptive
language was age appropriate, but her expressive language was “predominantly
unintelligible beyond the 2-3 word level.” (R. 126-27). Plaintiff reported that she could
understand L.D. 30%-40% of the time, but intelligibility decreased to less than 30% for
unfamiliar listeners. During the IEP evaluation, L.D. “could be understood less than 30%
of the time, especially out of context and as length of response increased.” (R. 127). The
IEP Team indicated that L.D. needed to: (1) improve articulation skills; (2) improve oral
motor awareness and function for speech sound production, sound sequencing, and words;
and (3) continue medical follow-up of the conductive pathology. (R. 129). L.D.’s school
presented Plaintiff with the IEP results during a conference on April 27, 2006. (R. 103-13).
The Conference Summary Report noted that L.D. was “speech and language impaired”
with moderate to severe variability in pre-academics. She needed role models for speech,
intensive speech therapy, and a “multi-sensory approach to learning.” (R. 106).
On June 20, 2006, Dr. Man completed a State of Illinois Department of Human
Services Certificate of Child Health Examination for L.D. (R. 432-33). He noted that L.D.
had asthma, awoke during the night from coughing, and was overweight and
developmentally delayed in the area of speech and language.

He approved L.D.’s

participation in physical education and one year of interscholastic sports. (R. 433).
L.D.’s next significant medical record is from October 30, 2006, when Dr. Joseph E.
Kerschner performed a uvulopalatopharyngoplasty (“UPPP”)1 and “KTP laser reduction of

1

UPPP is “a procedure used to remove excess tissue in the throat to widen the
airway.” (http://www.webmd.com/sleep-disorders/uvulopalatopharyngoplasty-for-snoring,
last viewed on January 23, 2012).
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[L.D.’s] inferior [nasal] turbinates.” (R. 233). Dr. Kerschner explained that despite L.D.’s
previous tonsillectomy and adenoidectomy, she still had ongoing obstructive sleep apnea
which necessitated the additional procedure. (Id.).
On November 21, 2006, L.D.’s Speech/Language Pathologist, Christine Mitchell,
M.A. CCC-Sp/L, reported that L.D. was receiving 90 minutes of speech/language therapy
per week. L.D. exhibited a “moderately-severe speech delay,” and her intelligibility was
“significantly reduced especially when the context [was] not known.” She was making
progress, however, and Ms. Mitchell recommended that the therapy continue. (R. 241).
On December 4, 2006, L.D. saw Dr. Michael B. Levy of the Wisconsin Children’s
Hospital and Health System. Dr. Levy sent a report to Dr. Man stating that L.D.’s chest was
essentially clear at that time, but that she was “obese.” He put her on Pulmicort in place
of Flovent and instructed Plaintiff to bring her back in about three months. (R. 460).
b.

Age 4

On March 28, 2007, L.D. had another sleep study. The results were once again
abnormal, showing evidence of severe obstructive sleep apnea.

Dr. D’Andrea

recommended that Plaintiff consider having L.D. use a nasal CPAP (continuous positive
airway pressure) machine. (R. 238-40, 462-63). Dr. D’Andrea repeated that suggestion
when L.D. returned for a follow-up visit on April 24, 2007. In a report to Dr. Man, Dr.
D’Andrea stated that L.D.’s surgical options for treatment of her apnea had been
exhausted, and she recommended another sleep study while L.D. was wearing a CPAP.
(R. 465-66). Plaintiff took L.D. back to Dr. Levy on May 7, 2007. L.D. presented with some
congested nasal mucosa but her chest was clear. Dr. Levy stated that overall L.D. had

11

been doing “fairly well,” and he confirmed for Plaintiff the value of a sleep study with CPAP
titration. (R. 459).
Approximately one month later, on June 5, 2007, Ms. Mitchell prepared an
addendum to her November 21, 2006 speech/language therapy report indicating that L.D.’s
“speech/language delays significantly decrease[d] her intelligibility.” (R. 242). Specifically,
L.D.’s intelligibility was 60% when the context was known, but only 45% when the context
was unknown. At that time, intelligibility did not increase with repetition. (Id.). L.D.
demonstrated limited ability to imitate words, and her “stimulability for the production of
sounds” was also limited, though she showed slight improvement with “auditory, visual and
tactile-kinesthetic cues from the speech/language pathologist.” (Id.).
L.D. had a sleep study with CPAP titration on July 5, 2007. (R. 468-69). The CPAP
resolved the obstructive sleep apnea and Dr. D’Andrea indicated that L.D. would receive
a CPAP unit to use at home. (R. 469). Dr. D’Andrea reported these findings to Dr. Man
in a letter dated August 14, 2007, and informed him that L.D. would return for a follow-up
evaluation in six months. (R. 470-71). She also observed that L.D. was starting preschool
that fall. (R. 470).
c.

Age 5

Just after L.D. turned five, on February 18, 2008, she returned to Dr. Levy for a
follow-up examination. Her asthma was under “partial control” at that time, but there had
been no ER visits or nighttime awakening. (R. 458). On April 22, 2008, L.D. had a followup visit with Dr. D’Andrea. (R. 472-73). Plaintiff told Dr. D’Andrea that L.D. was “doing
quite well with the CPAP,” was able to use it every night and wore it “throughout the entire
night.”

While wearing the CPAP, L.D. did not snore and her breathing was “quite
12

comfortable.” (R. 472). Dr. D’Andrea recommended continued use of the CPAP and
planned to see L.D. again in six months. (R. 473). When Plaintiff took L.D. back to Dr.
Levy on August 18, 2008, her asthma symptoms remained “quite well controlled,” she had
not used any inhalers for more than a month, and her chest was clear. Dr. Levy diagnosed
intermittent asthma, sleep apnea on CPAP, and parental concerns about weight and
diabetes. (R. 457).
On September 3, 2008, when L.D. was entering kindergarten, she had a progression
test showing that she was performing moderately below level in expressive language,
visual memory and fine motor, and considerably below level in visual discrimination. (R.
424).
3.

Age 6 to Age 8 (February 16, 2009 to February 16, 2011)
a.

Age 6 (Kindergarten to Middle of First Grade)

By April 15, 2009, L.D. was performing as expected in receptive language and fine
motor skills, and moderately above level in all other areas. (Id.). L.D.’s kindergarten
teacher completed a Pupil Growth Report stating that L.D. was developing appropriately
and should be promoted to first grade. The teacher described L.D. as a “very capable
student” who made “super progress in reading and math” throughout the school year. (R.
425–26). However, L.D. needed more time to develop socially in the areas of accepting
rules and routines, working/playing well with others, respecting authority, demanding a
normal share of attention, and practicing self-control. (R. 425). The teacher wrote that “[i]f
we could just stop the crying every day would be great.” (R. 426).
On August 31, 2009, L.D. saw Dr. Levy for a one-year follow-up exam. Plaintiff
reported that L.D. was “doing fine,” and Dr. Levy diagnosed stable asthma, history of sleep
13

apnea and obesity. (R. 453-56, 477-81). L.D. also had a follow-up visit with Dr. D’Andrea
on September 22, 2009. Plaintiff told Dr. D’Andrea that L.D. did well with the CPAP, put
it on every night and wore it through most of the night. According to Plaintiff, L.D. exhibited
a “rare soft snoring,” but “overall appear[ed] quite comfortable.” (R. 474). A Pulmonary
Function Report showed only mild obstruction of the small airways that responded well to
a bronchodilator. (R. 482). Dr. D’Andrea recommended that L.D. have another sleep study
with CPAP titration now that she was a couple of years older. (R. 475).
L.D. entered first grade in the fall of 2009, and on October 29, 2009, she took a
STAR Reading computer-adaptive reading test. (R. 405). Her teacher prepared a Parent
Report for Plaintiff showing that L.D. was at a slightly above average reading level. (R.
405-07). Shortly thereafter, on November 6, 2009, Plaintiff agreed to allow L.D.’s school
to perform a full case study evaluation of her daughter. L.D. had “c[o]me to the attention
of the [P]roblem [S]olving [T]eam” at her school because although her academics were
“well above average,” she was a “high maintenance person” in the classroom and was
“chronically disobedient and disrespectful on a daily basis.” (R. 393-94). Plaintiff was
concerned about L.D.’s ability to advance to second grade because she kept getting into
serious trouble, and the first-grade teacher was frustrated by L.D.’s constant interruptions
and defiant and oppositional behavior. (R. 393-94).
After evaluating L.D., Joan M. Coleman Almond, MSW, noted that she was
discouraged and frustrated in the first grade, and lacked “the insight and internal locus of
control in the classroom, in the hall, or any where in the school community.” L.D. enjoyed
school but needed and/or demanded so much attention that her interactions with
classmates and adults were not positive. Ms. Almond concluded that the school had
14

“exhausted the interventions thus far,” and stated that L.D. “would benefit from social work
regarding separation and loss, boundaries, frustration and anxiety.” (R. 394).
On November 13, 2009, L.D. received a Bus Conduct Report indicating that she was
always hitting kids on the bus, making them afraid of her. She also behaved rudely and
used unacceptable language. On November 16, 2009, L.D. received another Bus Conduct
Report stating that she had smacked a student on the face. The bus driver noted that this
was “not the first time” something like that had happened, and again cited L.D. for rudeness
and unacceptable language. (R. 402). Shortly thereafter, on December 7, 2009, the
school’s Problem-Solving Team requested a special education evaluation for L.D. due to
her poor academic performance and social/emotional behavioral concerns. (R. 400).
L.D. received a 2-day suspension from school on January 8, 2010 because she was
physically aggressive in class and she hit and kicked another child. (R. 422). Less than
two weeks later, on January 20, 2010, the school’s Director of Special Education reported
that L.D. needed to be re-evaluated “to determine eligibility for special education placement
and services, specifically, learning disability.” (R. 400). On February 19, 2010, L.D.
received another 2-day suspension for “gross disobedience and misconduct.” (R. 397).
On this occasion, L.D. hit, threw blocks at, and pushed other children, refused to complete
her assignment papers, and became so unruly that the teacher had to call security because
she was scaring the other students. (R. 398-99).

15

b.

Age 7 (Middle of First Grade to Second Grade)

In February 2010, Ruth Blameuser, OTR/L, conducted an occupational evaluation
of L.D. In her summary report, Ms. Blameuser noted that L.D. had “sensory processing
dysfunction that significantly affect[ed] her ability to control her behavior in the classroom
and other school settings.” (R. 392). This included “banging, leaning or slamming her body
into things like wal[l]s, furniture, or lockers.” (Id.). Ms. Blameuser recommended attaching
a piece of Velcro under L.D.’s desk that she could touch to calm herself down; giving L.D.
“[d]ynamic seating” to help her stay at her desk and on task; minimizing visual and auditory
distractions; clearing visual boundaries such as boldly colored tape; and using “multisensory, highly structured, consistent, and repetitive teaching and organizational strategies
in the classroom.” (Id.).
On February 24 and March 3, 2010, the school psychologist, Dennis Petrowsky,
conducted a Full and Individual Evaluation of L.D. due to an increase in negative behaviors
and aggressiveness towards peers and staff. (R. 440). Mr. Petrowsky found it “safe to
assume” that L.D. had “at least average intelligence,” but noted concerns with her social
functioning and level of happiness. (R. 442-43). L.D. told Mr. Petrowsky that she was
afraid that something might happen to her family members and had scary dreams. Mr.
Petrowsky described her as “a very anxious child” who “exhibits little problem solving skills.”
(R. 443-44).
L.D. was suspended again on March 10, 2010, this time for three days. She was
cited for “[g]ross misconduct” and repeated rule violations, including “constantly being
disrespectful and hitting her teachers and not listening.” (R. 396). Eight days later, on
March 18, 2010, Speech-Language Pathologist Izreal Cary, M.S., CCC-SLP, prepared a
16

Speech-Language Re-evaluation Report on L.D. (R. 389-90). At that time, her expressive
language and comprehension were “mildly compromised by her reduced use of specific
vocabulary.”

(R. 390).

Her “social use of language (pragmatics)” also was “mildly

reduced,” and “[f]rom time to time she demonstrate[d] weaknesses in the syntactical
complexity of her expressive language.” Mr. Cary indicated that L.D. would benefit from
direct speech and language services, recommended that she be immersed in a “vocabulary
enriching environment at school and at home,” and suggested that she “improve her
articulation and syntactical skills in conversation.” (Id.).
The next day, on March 19, 2010, L.D.’s IEP Team prepared an “Individualized
Education Program (Conference Summary Report)” summarizing all of L.D.’s tests and
evaluations. (R. 364-88). They concluded that L.D. had an “Emotional Disability” that
caused her “great difficulty with relationships [with] adults [and] peers.” (R. 366). L.D.
exhibited poor impulse control and resultant fear, she bullied other children, and she was
defiant, oppositional and physically aggressive and hostile to peers and adults. (R. 366,
370). In addition, L.D. was frequently disruptive and unable to follow school rules, and
even minor provocations led to “extreme rage.”

The IEP Team believed that L.D.

“appear[ed] to suffer from significant social/emotional disturbance affecting all areas of
learning.” (R. 372). In a smaller setting, however, L.D. could be attentive and affectionate.
(R. 372, 375).
L.D.’s Behavioral Intervention Plan included teaching her about impulse control,
anger management and full compliance. (R. 375). The IEP Team placed her in a small ED
Instructional Classroom (for children requiring special education services), explaining that:

17

Due to the severity of physical aggression and verbal abuse toward staff and
peers[,] an instructional classroom was deemed most suitable. [L.D.’s]
behaviors interfere with the teacher’s ability to teach and the other students’
ability to learn. They have expressed fear of her.
(R. 383). To accommodate L.D.’s need for a smaller class size, she was transferred to a
different school in the spring of 2010 that had a special education (“ED”) program. (R. 50506). Her “primary Handicapping condition” was emotional disability, but she still qualified
for speech and language services. (R. 395, 444).
Before the transfer and halfway through L.D.’s first grade year, her teacher
prepared a Pupil Growth Report. (R. 403-04). L.D. lacked self-control, frequently refused
to follow directions, and “exhibited lying, stealing, disrespect and physical aggression to
others.” (R. 404). Her performance was average in reading, math, English/writing,
science/health and social studies, but she was failing in the areas of conduct and following
directions/listening. (R. 423). After L.D. was transferred into the smaller classroom at the
new school, however, her new teacher described L.D. as a “very bright student” with
excellent academic work, especially in reading. L.D. spent more time worrying about
herself instead of focusing on others, though she still needed reminders to keep her hands
and feet to herself. (R. 419-20). She also needed more time to develop in the areas of
respecting the rights and feelings of others, demonstrating self-control, following rules,
assuming responsibility and working without disturbing others. (R. 419). Ms. Massong
recommended that L.D. be promoted to second grade. (R. 420).

18

B.

Plaintiff’s Testimony
At the September 21, 2010 hearing, Plaintiff testified that L.D.’s behavioral and

emotional problems really became significant in first grade. (R. 491). She was suspended
many times until she was placed in an ED classroom in the spring of 2010, where she
spent most of the day with just four other children. (R. 492-94, 501). L.D. adjusted well to
the new classroom; her grades improved and she no longer got suspended. (R. 494, 502).
In fact, she was “too fast” intellectually for the ED classroom, and Plaintiff indicated that
L.D. would finish her work quickly and then become bored with nothing to do. This, in turn,
led to behavior issues. (R. 500).
As a second grader, L.D. had a couple of problems on the bus, but after the driver
started making her sit in the front, Plaintiff stopped receiving calls from the school. (R.
493). L.D. had joined Girl Scouts and had a lot of friends at the first school, but knew fewer
children at the new school. (R. 498-99). She liked to go bowling, play Wii games, color
and watch television. (R. 499). She could take a bath, dress herself, brush her teeth, clean
her room and help with the dishes with reminders. (R. 503-04). L.D. argued and bickered
with her siblings, but she mostly got along with the sister with whom she shared a room,
and she liked spending the night at her cousin’s house. (R. 504-05). She attended day
camp during the summer of 2010 and was only written up once because she really liked
the field trips and activities. (R. 506-07). Plaintiff told the ALJ that L.D.’s behavior in
second grade was improving a little bit, but she continued to be bored when she finished
her schoolwork and then started talking and running around. (R. 505, 507).
Plaintiff testified that L.D.’s sleep apnea was under control with the CPAP, which she
wore about 90 percent of the time, and that her asthma was under control with Singulair
19

and Albuterol. (R. 495-96, 508). She no longer needed a nebulizer and was able to
participate in gym classes without restriction, using her inhaler only as needed. (R. 49697). L.D. continued to participate in speech/language therapy, but the only area where she
really had problems was with her conduct. (R. 520-21).
C.

L.D.’s Testimony
L.D. testified that it was easier to pay attention in the smaller classroom and she

was doing “good” in school. (R. 512). She had 10 friends, played on the playground and
outside, participated in gym class, went swimming and jumped rope. (R. 513, 516-17).
D.

Medical Expert Testimony
Dr. Sai Nimmagadda testified at the hearing as an ME. He stated that L.D. suffers

from a history of asthma, sleep apnea, oppositional defiant disorder (“ODD”), speech and
language impairment, and obesity, but that she does not meet or equal any listing, including
103.03 (asthma/apnea) or 112.08 (ODD). (R. 522-23). In the ME’s opinion, L.D. has a less
than marked limitation in all domains of functioning except interacting and relating with
others, in which she demonstrates a marked limitation. (R. 523). The ME explained that
L.D. was doing relatively well in school, “at least keeping on track and on pace with a
smaller classroom.” (R. 524). She did not have any problems attending day camp and
could complete most of her activities of daily living aside from doing her hair. In addition,
her asthma was well controlled and she was using a CPAP for her sleep apnea. (R. 52425).
L.D.’s limitation in interacting and relating with others manifested itself as physical
abuse towards peers and siblings, and impulse control problems. The ME found that L.D.
did not have an extreme limitation in this area because she was “doing better with the
20

smaller school setting” and having fewer outbursts, and had not been suspended at all after
moving to the new school. (R. 524). In addition, there were always times when she could
“get refocused” and complete tasks. (R. 540).
In response to questioning from Plaintiff’s attorney, the ME indicated that L.D. may
have had an extreme language limitation for some closed period, but by 2006 her speech
had improved with therapy. (R. 529-30). The ME acknowledged that the June 2007 report
from Christine Mitchell stated that L.D. was intelligible less than 50% of the time, but he
maintained that she still had only a marked limitation because she had improved over time.
(R. 531, 536-37). With respect to the domain of caring for yourself, the ME noted that L.D.
was able to bathe herself and get dressed. He acknowledged that L.D. used a velcro strip
under her desk to try and calm down when she felt angry or upset, and concluded that she
had a marked limitation in the area of sensory processing.

(R. 538-39).

The ME

considered the fact that L.D. reacted to minor provocations with extreme rage, but he found
it significant that she did not sustain any injuries as a result of her anger, and that she was
able to attend summer camp. (R. 539). The ME also stressed that in the smaller class
setting, L.D. was no longer getting suspended. (R. 540).
E.

The ALJ’s Decision
The ALJ found that L.D. was a school-age child who had not engaged in any

substantial gainful activity since she applied for benefits on November 1, 2004. (R. 275).
L.D. has a history of asthma, sleep apnea, obesity, a mild speech and language
impairment, and ODD present since 2009, but none of these severe impairments meets or
medically equals any listing. (Id.). The ALJ explained that L.D.’s sleep apnea is controlled

21

with the CPAP, her asthma is controlled with medication, and her ODD does not result in
any “listing level limitation.” (R. 275-76).
The ALJ next concluded that L.D. does not have an impairment or combination of
impairments that functionally equals the listings. In reaching this conclusion, the ALJ gave
substantial weight to the ME’s opinions, which she characterized as “well-informed.” She
also gave considerable weight to the opinions of the State agency medical consultants. (R.
280). The ALJ divided her discussion into two parts. She first addressed L.D.’s limitations
from November 1, 2004 through August 31, 2009, which was before she started exhibiting
ODD. The ALJ then considered L.D.’s impairments from September 1, 2009 through the
date of the decision. This opinion focuses on the domains that are in dispute for purposes
of appeal.
1.

November 1, 2004 - August 31, 2009

In the domain of interacting and relating with others, the ALJ found L.D. to have a
less than marked limitation based on Plaintiff’s testimony that L.D. would play alongside
other children, interact, and communicate her needs and wishes with gestures. In addition,
school officials described L.D. as a pleasant, friendly and fun-loving child who liked to play.
The ALJ acknowledged that as of April 2006 L.D.’s intelligibility was in the 30-40% range,
but observed that even at that time she “remained capable of expressing herself using
multi-word utterance[s] and her receptive language was adequate and age-appropriate.”
(R. 279, 284). The ALJ also noted that by November 2006, L.D.’s intelligibility had
increased to 60%. (R. 279, 284).
With respect to caring for yourself, the ALJ found that L.D.’s limitation was less than
marked because she could drink from a cup and feed herself with utensils, was cooperative
22

with self care, could dress herself, had independent toileting skills, and exerted her
independence. (R. 279, 286). The ALJ stressed that according to Plaintiff, L.D. was easily
distracted and fatigued, but also “intelligent and smart.” Upon psychological evaluation,
moreover, L.D.’s social interaction skills and cognitive functioning were largely ageappropriate. (R. 279).
2.

September 1, 2009 to October 5, 2010

The ALJ next determined that as of September 1, 2009, L.D. had a marked limitation
in interacting and relating with others due to her ODD. (R. 287). The ALJ noted that L.D.’s
first grade IEP report reflected that she had poor impulse control, emotional instability and
chronic disobedience, which inhibited her ability to stay on task. She also bullied other
children and was verbally and physically aggressive towards peers and adults, and
exhibited sensory dysfunction affecting her ability to control her behavior. (R. 280).
Nevertheless, L.D. did not require any occupational therapy for the sensory dysfunction,
she was able to perform at an average or above average range on her schoolwork, she
joined the Girl Scouts, and she had a lot of friends despite being a bully. (R. 280, 287).
Once L.D. was placed in the smaller school setting, she did not demonstrate behavior
issues “except for two instances where she talked back to her teacher.” (R. 287). The ALJ
found it significant that L.D. did not receive any suspensions in 2010, and got only one
write-up from summer camp. In addition, Plaintiff testified that L.D. argued with her siblings
but mostly “gets along,” and L.D. testified that she has friends she plays with on the
playground. (Id.).

23

In the domain of caring for yourself, the ALJ found that L.D. had a less than marked
limitation after August 31, 2009. Despite her asthma, she could take baths, brush her
teeth, keep her room clean, and help with dishes with reminders. (Id.).

DISCUSSION
A.

Standard of Review
Judicial review of the Commissioner’s final decision is authorized by § 405(g) of the

Social Security Act. See 42 U.S.C. § 405(g). In reviewing this decision, the court may not
engage in its own analysis of whether the claimant is severely impaired as defined by the
Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004)
(citation omitted). Nor may it “displace the ALJ’s judgment by reconsidering facts or
evidence or making credibility determinations.” Skinner v. Astrue, 478 F.3d 836, 841 (7th
Cir. 2007). The court’s task is to determine whether the ALJ’s decision is supported by
substantial evidence, which is “‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir.
2007) (quoting Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). In making this
determination, the court must “look to whether the ALJ built an ‘accurate and logical bridge’
from the evidence to [his] conclusion that the claimant is not disabled.” Simila v. Astrue,
573 F.3d 503, 513 (7th Cir. 2009) (quoting Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.
2008)). Where the Commissioner’s decision “‘lacks evidentiary support or is so poorly
articulated as to prevent meaningful review,’ a remand is required.” Hopgood ex rel. L.G.
v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009) (quoting Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002)).
24

B.

Framework for Child SSI Benefits
A child is disabled within the meaning of the Social Security Act if she has a

“physical or mental impairment, which results in marked and severe functional limitations,
and . . . which 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). In determining whether a child meets this
definition, the ALJ engages in a three-step analysis: (1) if the child is engaged in substantial
gainful activity, then her claim is denied; (2) if the child does not suffer from a severe
impairment or combination of impairments, then her claim is denied; and (3) the child’s
impairments must meet, medically equal, or be functionally equal to any of the Listings of
Impairments contained in 20 C.F.R. pt. 404, subpt. P, App. 1. 20 C.F.R. § 416.924(b)-(d).
See also Giles ex rel. Giles v. Astrue, 483 F.3d 483, 486 (7th Cir. 2007).
To determine whether an impairment functionally equals a listing, the ALJ must
assess its severity in six age-appropriate categories: (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 yourself; and (6) health and physical wellbeing. 20 C.F.R. § 416.926a(b)(1). Each domain describes what a child should be able
to do throughout five age categories: (1) “newborns and young infants” (birth to age 1); (2)
“older infants and toddlers” (age 1 to age 3); (3) “preschool children” (age 3 to age 6,
including children in kindergarten but not first grade); (4) “school-age children” (age 6 to
age 12, including children in first grade through middle school); and (5) “adolescents” (age
12 to age 18). 20 C.F.R. § 416.926a(g)(2), (h)(2), (i)(2), (j)(2), (k)(2), (l)(2).
An impairment functionally equals a listing if it results in “marked” limitations in two
domains of functioning, or an “extreme” limitation in one domain.
25

The functional

equivalence analysis requires the ALJ to consider how the child functions as a whole.
“[T]his consists of looking at all of the child’s activities, which include everything the child
does at home, at school, and in her community, and evaluating how the child is limited or
restricted in those activities, without cabining the child’s impairments into any particular
domain.” Bielefeldt ex rel. Wheelock, No. 09 C 50302, 2011 WL 3360013, at *4 (N.D. Ill.
Aug. 4, 2011) (citing 20 C.F.R. § 416.926a(b)-(c)).
C.

Analysis
Plaintiff argues that the ALJ’s decision must be reversed because of numerous

errors in analyzing two domains of L.D.’s functioning: interacting and relating with others,
and caring for yourself. In addition, Plaintiff contends that the ALJ violated the law of the
case doctrine in finding that L.D. had less than marked limitation in the domain of health
and physical well-being. Finally, Plaintiff asserts that the ALJ erred in failing to make a
credibility determination regarding Plaintiff’s testimony. The Court considers each in turn.
1.

Interacting and Relating With Others

The domain of interacting and relating with others considers how well a child is able
to develop and use language, comply with rules and respond to criticism. A preschool-age
child (age 3 to 6) should start to make friends, play cooperatively with other children, and
“initiate and participate in conversations, using increasingly complex vocabulary and
grammar, and speaking clearly enough that both familiar and unfamiliar listeners can
understand what [she] say[s] most of the time.” 20 C.F.R. § 416.926a(i)(2)(iii). A schoolage child should be able to develop more lasting friendships, work in groups, and have “an
increasing ability to understand another’s point of view and to tolerate differences.” The

26

child should also be able to “speak in a manner that both familiar and unfamiliar listeners
can readily understand.” 20 C.F.R. § 416.926a(i)(2)(iv).
a.

Speech and Language Impairment

Plaintiff argues that the ALJ erred in finding that L.D. had neither a marked nor
extreme limitation in speech and language. A child’s speech is evaluated using four age
categories: (1) birth to age 2; (2) age 2 to age 3 ½; (3) age 3 ½ to age 5; and (4) age 5 and
older. SSR 98-1p. Under SSR 98-1p, a child between the ages of 3 ½ and 5 has a marked
speech limitation if the following is true:
a. Sounds, omissions, distortions, or phonological patterns, or fluency (rate,
rhythm of speech) are not typical for this group; or [there are] significant
aberrations in vocal pitch, quality, or intensity; and
b. Conversation is intelligible no more than ½ of the time on first attempt;
and
c. Intelligibility improves with repetitions.
SSR 98-1p, at *10 (emphasis in original). A child in this age range has an extreme speech
limitation if:
a. Criteria a. and b. for Marked Limitation are met, and
b. Conversation continues to be intelligible no more than ½ of the time
despite repetitions, and
c. Stimulability for production of sounds is limited, or, ability to imitate words
is limited.
Id. (emphasis in original).

27

i.

June 2007 Report

Plaintiff first argues that the ALJ committed reversible error because she misstated
the date of Ms. Mitchell’s most recent speech/language therapy report. Specifically, the
ALJ stated that in November 2006, Ms. Mitchell found L.D.’s intelligibility to be 60% in a
known context. (R. 279). In fact, the report containing this statement is dated June 5,
2007. (R. 242). Plaintiff finds this error significant because in April 2006, L.D.’s IEP Team
determined that she was intelligible at most 30%-40% of the time in both known and
unknown contexts. (R. 127). As a result, Plaintiff argues, the April 2006 report showed an
extreme limitation in speech, and there is “a question of whether L.D. met the 12-month
durational requirements for an extreme limitation under SSR 98-1p.” (Doc. 26, at 8; Doc.
41, at 1).
Defendant responds that Plaintiff is improperly mixing age categories by referring
back to April 2006. At that time, L.D. was only 3 years and 2 months old, placing her in the
age 2 to age 3 ½ category. A child in that age range has an extreme limitation if (a) she
meets the criteria for a marked limitation; and (b) gesturing and pointing are used most of
the time instead of oral expression; and (c) intelligibility does not improve even with
repetition or models, or ability to imitate words is limited. SSR 98-1p, at *10. Defendant
argues that there is no evidence that L.D. used mostly gestures and pointing as of April
2006, as required for an extreme impairment in the 2 to 3 ½ year age range. (Doc. 37, at
8).
The Court agrees with Plaintiff that the ALJ said nothing about gesturing and
pointing, suggesting that Defendant is attempting to defend the ALJ’s decision on grounds
that she did not herself articulate. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010)
28

(Chenery “forbids an agency’s lawyers to defend the agency’s decision on grounds that the
agency itself had not embraced.”) Contrary to Plaintiff’s suggestion, however, there is no
evidence that the ALJ found – or should have found – the April 2006 report reflective of an
extreme limitation in L.D.’s speech. The ALJ stated that although L.D.’s intelligibility was
well below 50% at that time, she “remained capable of expressing herself using multi-word
utterance[s] and her receptive language was adequate and age-appropriate . . ., thereby
failing to establish insufficient consonant-vowel repertoire to support development [o]f
expressive language, as required for ‘extreme’ limitation.” (R. 279). Plaintiff makes no
mention of this finding and offers no explanation as to why it is either inaccurate or
insufficiently detailed to support the ALJ’s conclusion that L.D. had a less than extreme
limitation in the area of speech while in the 2 to 3 ½ age range. Nor is there any evidence
that as of April 2006, L.D., who was able to use multi-word utterances, was in fact using
gesturing and pointing “most of the time instead of oral expression” as required to
demonstrate an extreme limitation.

SSR 98-1p, at *10; (R. 129).

This seriously

undermines Plaintiff’s theory that L.D. met the 12-month durational requirement for a
severe limitation starting in April 2006.
There can be no dispute that the ALJ misstated the date of the June 2007 report.
The Court is not convinced, however, that the ALJ would have reached a different
conclusion regarding L.D.’s speech impairment if she had utilized the correct date. See
Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir. 2003) (“[T]he doctrine of harmless error . .
. is fully applicable to judicial review of administrative decisions.”); Scott v. Astrue, 730 F.
Supp. 2d 918, 935 (C.D. Ill. 2010) (“Harmless errors are those that do not affect the ALJ’s

29

determination that a claimant is not entitled to benefits.”) Plaintiff’s request for a remand
based on the misstated report date is denied.
ii.

Known v. Unknown Context

Plaintiff next argues that the ALJ erred in limiting her evaluation of L.D.’s speech
intelligibility to the known context. As of June 2007, L.D. was intelligible 60% of the time
when the context was known, but only 45% of the time when the context was unknown.
In addition, intelligibility did not increase with repetition. (R. 242). The ALJ observed that
SSR 98-1p “does not appear to limit evaluation to only unknown context of speech,” and
then focused on L.D.’s 60% intelligibility in the known context without even mentioning the
45% intelligibility in the unknown context. (R. 279). Plaintiff claims that this was improper
because the ALJ failed to consider and explain why she ignored evidence favorable to
L.D.’s claim. (Doc. 26, at 9-10).
Defendant disagrees, noting that the ALJ did acknowledge L.D.’s 30% intelligibility
rate in the unknown context as of April 2006. (Doc. 37, at 9). Of course, this does not
speak to L.D.’s subsequent intelligibility rate in June 2007. Defendant also directs the
Court to the language of SSR 98-1p. (Id. at 9-10). The Ruling provides that intelligibility
means “the degree to which the child can be understood by the listener,” and “[r]atings of
intelligibility should be evaluated with respect to the familiarity of the listener with the child
and the frequency of contact.” It is important to remember, however, that “[r]atings of
intelligibility by unfamiliar listeners for whom the topic of conversation is unknown assume
increasingly greater importance as children age.” The Ruling explains that:
Young children typically talk about what is immediately present in their
environment, and listeners may be able to use external clues to understand
such children’s speech. As children age, however, the topics of their
30

conversation should become less embedded in the immediate physical
context (e.g., they talk about past or future events); the unfamiliar listener,
therefore, has fewer clues available for understanding the child’s speech.
The older a child becomes, the more intelligible he/she needs to be in school
and social situations with infrequent listeners or strangers.
SSR 98-1p, at *8-9.
Defendant argues that these statements demonstrate “the ALJ reasonably relied
more heavily on the fact that [L.D.] had 60% intelligibility in a known context” in finding that
she did not have a marked or extreme limitation of speech. (Doc. 37, at 9-10). Plaintiff
insists that “the ALJ committed reversible error by failing to even acknowledge both
contexts.” (Doc. 41, at 3). Neither party cites to any supporting authority for these
propositions, and SSR 98-1p does not delineate how important the unknown context is for
specific age groups.
As of June 2007, L.D. was not quite 4 ½ years old and had not yet started preschool.
The Court doubts that the need to be understood in an unknown context is of particular
importance to a child this age. Moreover, SSR 98-1p states that for an extreme limitation,
a child must be intelligible “no more than ½ of the time.” Here, L.D.’s intelligibility 60% of
the time in the known context easily exceeds that threshold. Nevertheless, the ALJ did not
provide any rationale for completely ignoring L.D.’s 45% intelligibility rate in the unknown
context. See Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (“[T]he ALJ is not
required to discuss every piece of evidence, but must build a logical bridge from evidence
to conclusion.”)
It is clear that L.D.’s speech was improving over time, and it may well be that her
45% intelligibility rate in the unknown context is not sufficient to constitute a disability here.
On the record presented, however, the Court cannot determine whether the ALJ fairly
31

considered this evidence in finding that L.D. had a less than marked limitation in her speech
prior to September 1, 2009. This is also true with respect to certain findings in Ms.
Mitchell’s report that were not mentioned in the ALJ’s opinion. Specifically, the report said
L.D. had limited “stimulability for the production of sounds” and “ability to imitate words,”
which are factors that support a finding of an extreme speech limitation. (R. 242). The
report also noted that L.D., who had by then advanced to the 3 ½ to 5 age range, exhibited
a “moderately-severe speech delay characterized by consonant blend reduction . . .;
stopping . . .; final consonant deletion . . .; and fronting.” (R. 241). This Court expresses
no opinion as to the significance of such evidence but the case must be remanded to
ensure that the ALJ considered this evidence together with the other evidence described
in the opinion.
iii.

ME’s Testimony

Plaintiff next argues that the case should be remanded because the ALJ failed to
resolve inconsistencies in the ME’s testimony. At the September 21, 2010 hearing, the ME
testified that L.D. had a mild speech and language impairment from 2004 to 2006. (R.
526). He first stated that he was aware of SSR 98-1p and that he considered L.D.’s speech
impairment in the context of that Ruling. (R. 526, 528). Later in the hearing, the ME said
that he did not have the Ruling in front of him, prompting Plaintiff’s attorney to read him the
portion relating to extreme speech limitations for children aged 3 ½ to 5. (R. 537). The ME
then conceded that he had not in fact reviewed that section of SSR 98-1p. (R. 538).
Plaintiff’s attorney objected to the ME’s testimony given his lack of familiarity with the
pertinent section of the Ruling, but the ALJ overruled the objection because the attorney
had just read it to him. (Id.).
32

The ALJ gave the ME’s opinion “substantial weight” and described it as wellinformed. She did not, however, mention the ME’s changed testimony regarding his
familiarity with SSR 98-1p. (R. 280). Plaintiff argues that once her attorney questioned the
reliability of the ME’s testimony, the ALJ had a duty to “make an inquiry (similar though not
necessarily identical to that of Rule 702) to find out whether the purported expert’s
conclusions are reliable.” Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002).
Defendant maintains that the ALJ elicited a significant amount of testimony on direct
examination and during counsel’s cross-examination, and did not need to delve any further
into the ME’s testimony. (Doc. 37, at 11-12). Defendant also stresses that the ME never
stated that L.D. met or functionally equaled a listing in the area of speech. (Id. at 11).
Given that the case is already being remanded for further analysis, the ALJ should
take the opportunity to ensure that the ME was familiar with SSR 98-1p and that he
considered L.D.’s speech impairment in the context of that Ruling when formulating his
opinion.
b.

Oppositional Defiant Disorder

The ALJ found that from September 1, 2009 through the date of her decision, L.D.
had a marked limitation in the domain of interacting and relating with others due to her
ODD. (R. 287). Plaintiff claims that the ALJ’s assessment is flawed because she ignored
key evidence and improperly compared L.D. to children with impairments.
i.

Discussion of the Evidence

Plaintiff first insists that the ALJ failed to address significant evidence that supported
a finding that L.D. had an extreme limitation in her ability to interact and relate with others.
(Doc. 26, at 12-13). The Court disagrees. A careful review of the record demonstrates that
33

the ALJ actually discussed L.D.’s ODD and behavior problems in detail. For example, the
ALJ noted that L.D.’s March 2010 IEP report stated that she “disrupt[ed] the classroom with
poor impulse control, emotional instability and chronic disobedience, inhibiting her ability
to stay on task and causing easy distraction.” (R. 280). The ALJ also observed that L.D.
bullied other children and was verbally and physically aggressive towards peers and adults.
The ALJ reported that L.D. had received multiple suspensions and disciplinary actions
during the 2009-2010 school year, and that she spent more than 80% of her time in special
education. (Id.).
In another paragraph, the ALJ noted that an occupational therapy evaluation showed
L.D. to have sensory dysfunction affecting her ability to control her behavior, but the ALJ
also found it significant that “no need for occupational therapy was indicated.” (Id.). L.D.
was able to be affectionate one-on-one and cooperative in small groups, and school
psychologist Dennis Petrowsky indicated that he was easily able to establish rapport with
her. (Id.). The ALJ concluded that these facts “negate an extreme limitation in [L.D.’s]
ability to interact and relate with others.” (Id.).
Plaintiff argues that though the ALJ mentioned these facts “in her general discussion
of L.D.’s symptoms,” she did not build an accurate and logical bridge to her ultimate
conclusion because she did not discuss the symptoms again seven pages later “in her
analysis under the interacting and relating with others domain.” (Doc. 26, at 12). In that
section, the ALJ noted that L.D. had joined the Girl Scouts, had a lot of friends despite
being a bully, was doing much better in the smaller school setting and received no
suspensions there, attended summer camp with only one write-up, and argued but mostly
got along with her sibling.

(R. 287).

“Rather than nitpick the ALJ’s opinion for
34

inconsistencies or contradictions, we give it a commonsensical reading.” Jones v. Astrue,
623 F.3d 1155, 1160 (7th Cir. 2010). Viewed as a whole, the ALJ clearly considered L.D.’s
behavior problems in determining that she had a marked limitation in interacting and
relating with others.
Plaintiff disagrees, arguing that Murphy v. Astrue, 496 F.3d 630 (7th Cir. 2007),
establishes that the ALJ’s analysis is lacking. (Doc. 41, at 5). In Murphy, the ALJ found
the child not disabled based on school records indicating that he “did not talk excessively,
did not interrupt or intrude, did not move about unexpectedly, knew the answers to
questions when called upon, was cooperative, had a good sense of humor, tried to follow
rules, and wanted to do well in his studies.” 496 F.3d at 634-35. The ALJ did not,
however, discuss other evidence that supported a finding of disability, such as that the
child: had trouble completing work due to deficits in attention span, concentration and ontask behavior; lost things; worked slowly, struggling to finish assignments and turning in
incomplete work; failed to pay attention to details; and avoided or struggled with tasks
requiring sustained mental effort. Id. at 634. The Seventh Circuit held that the ALJ should
have explained why the child’s sense of humor, desire to do well and follow rules, and
ability to not interrupt or move about unexpectedly “trump[ed] the evidence of his inability
to attend and complete tasks.” Id. at 635.
Plaintiff contends that as in Murphy, the ALJ in this case failed to explain why, for
example, “L.D. establishing rapport with a school psychologist trumps L.D.’s inappropriate
classroom behaviors, aggressive bullying actions, and multiple suspensions with
disciplinary actions.” (Doc. 41, at 5). The comparison is inapt because the ALJ in this case
discussed all of the available evidence, whereas the ALJ in Murphy simply ignored
35

important facts indicative of disability without explaining why he gave them no weight. The
ALJ fairly considered L.D.’s severe behavioral problems and explained why they caused
only a marked limitation in this case.
ii.

Comparison to Children Without Limitations

Plaintiff contends that the case still requires remand because the ALJ improperly
compared L.D. to other children with impairments. In determining whether a child has a
marked or extreme limitation in any domain, the ALJ must “begin by considering how the
child functions every day and in all settings compared to other children the same age who
do not have impairments.” SSR 09-1p, at *2. See also 20 C.F.R. § 416.926a(f)(1). The
ALJ found it significant that L.D. had “not had recent behavior issue[s] since placement in
the special smaller school setting, except for two instances where she talked back to her
teacher.” (R. 287). In addition, the ME testified that L.D. had only a marked limitation in
interacting and relating with others after September 1, 2009 because “she apparently is
doing better with the smaller school setting.” (R. 524).
Plaintiff contends that the ALJ and the ME committed reversible error by relying on
the fact that L.D.’s behavior improved in a smaller school setting where all of the children
had impairments like L.D. (Doc. 41, at 5-6). The Court disagrees. The regulations
contemplate that some children may require a supportive or structured setting, such as a
special classroom. 20 C.F.R. § 416.924a(b)(5)(iv)(B). Such a setting:
may minimize signs and symptoms of your impairment(s) and help to
improve your functioning while you are in it, but your signs, symptoms, and
functional limitations may worsen outside this type of setting.
20 C.F.R. § 416.924a(b)(5)(iv)(C). Thus, even if a child is able to function adequately in
a structured or supportive setting, “we must consider how you function in other settings and
36

whether you would continue to function at an adequate level without the structured or
supportive setting.” Id. The “other settings” include “home, school, and in the community.”
SSR 089-1p, at *3.
Here, the ALJ acknowledged that since approximately the spring of 2010, L.D. has
spent more than 80% of her day in a special education classroom. (R. 280, 492-93). The
ALJ concluded, however, that this did not reflect an extreme limitation in interacting and
relating with others because L.D. also: demonstrated above average academic scores
despite her difficulties staying focused; did not require occupational therapy despite some
sensory dysfunction; was affectionate one-on-one; was attentive at times and cooperative
in small groups; established easy rapport with the school psychologist; joined the Girl
Scouts; had a lot of friends at her old school despite being a bully there; mostly got along
with her sibling; and attended summer camp. (R. 280, 287). Viewed as a whole, the Court
is satisfied that the ALJ fairly considered L.D.’s functioning in the special classroom and in
other relevant settings in finding that she had a marked limitation in interacting and relating
with others from September 1, 2009 through the date of the decision.
Plaintiff makes much of the fact that the ALJ accorded substantial weight to the ME’s
opinion, objecting that he, too, cited the smaller school setting as a basis for finding only
a marked limitation. (Doc. 41, at 6; R. 280). Regardless, the ALJ provided a more
thorough explanation for her decision that is supported by substantial evidence. On the
record presented, the Court is not persuaded that the ALJ erred with respect to SSR 09-1p.

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2.

Caring for Yourself

Plaintiff next finds error in the ALJ’s conclusion that L.D. has a less than marked
limitation in the domain of caring for yourself. This domain considers how well a child
maintains “a healthy emotional and physical state,” “cope[s] with stress and changes in
[the] environment,” and is able to take care of personal “health, possessions, and living
area.” 20 C.F.R. § 416.926a(k). A school-age child (age 6 to age 12) “should be
independent in most day-to-day activities,” and “should begin to develop understanding of
what is right and wrong, and what is acceptable and unacceptable behavior.” The child
should also “begin to demonstrate control over [her] behavior,” and “be able to avoid
behaviors that are unsafe or otherwise not good for [her].” 20 C.F.R. § 416.926a(k)(iv).
a.

Comparison to Children Without Limitations

Plaintiff once again objects that the ME improperly compared L.D. to children with
impairments in contravention of SSR 09-1p. Plaintiff’s attorney asked whether the ME
considered L.D.’s suspensions and physical aggression towards others in assessing the
caring for yourself domain. The ME responded that “I consider that to be marked, but when
she’s placed in the appropriate setting, which is a smaller class size, she’s now functioning
well.” (R. 539-40). Based on this exchange, Plaintiff argues that the ME improperly
concluded that she had a less than marked limitation only when compared with other
impaired children.
In the Court’s view, the attorney’s question reflects a misunderstanding of SSR 097p. That Ruling explains that the caring for yourself domain “involves a child’s feelings and
behavior in relation to self (as when controlling stress in an age-appropriate manner).”
Conversely, “a child’s feelings and behavior in relation to other people (as when the child
38

is playing with other children, helping a grandparent, or listening carefully to a teacher)”
implicates the separate domain of interacting and relating with others. SSR 09-7p, at *4.
Here, the attorney asked about suspensions for hitting other people, which clearly relates
to the domain of interacting and relating with others, and not caring for yourself. Elsewhere
in his testimony, the ME explained that the latter domain involves activities such as bathing,
dressing and feeding oneself, which are all things L.D. is generally capable of doing. (R.
538). The ME also observed that L.D. did not present with any injuries, such as bruises,
cuts or falls, indicating that she was not having trouble caring for her physical well-being.
(R. 539).
The Court finds that the ME did not err in his analysis of the caring for yourself
domain, and Plaintiff’s contention that he improperly compared L.D. to other impaired
children in violation of SSR 09-1p is without merit.
b.

Combination of Impairments

Plaintiff also argues that the ALJ erred in failing to adequately consider all of L.D.’s
impairments in combination. The ALJ found that prior to September 1, 2009, L.D. had a
less than marked limitation in the domain of caring for yourself because she could “drink
from a cup, was cooperative with self care, and could dress herself simply, as well as exert
her independence.” (R. 286). For the period September 1, 2009 to the date of the
decision, the ALJ still found a less than marked limitation, explaining that L.D. “takes baths,
brushes her teeth, keeps her room clean and helps with dishes with reminders, despite her
asthma.” (R. 287).
Plaintiff claims that this analysis is flawed because the ALJ did not consider L.D.’s
sleep apnea or ODD as it relates to the caring for yourself domain. (Doc. 26, at 16).
39

Plaintiff first notes that under the regulations, “disturbance in . . . sleeping patterns” is an
example of limited functioning in caring for yourself. 20 C.F.R. § 416.926a(k)(3)(vi). She
claims that L.D. “often removed her CPAP mask during the night,” and objects that the ALJ
should have discussed this fact in connection with the caring for yourself domain. (Doc.
26, at 16). The Court disagrees.
It is not true that L.D. “often” removed her CPAP mask during the night. Her mother
testified that she wore it 90% of the time (R. 508), which is consistent with medical records
from Dr. D’Andrea indicating that L.D. was wearing the CPAP every night through most of
the night in both April 2008 and September 2009. (R. 472, 474). The regulations make
clear that the examples of limited functioning “do not necessarily describe a ‘marked’ or
‘extreme’ limitation,” 20 C.F.R. § 416.926a(k)(3), and the Court is not persuaded that the
ALJ erred in finding that L.D.’s minimal sleep disturbance did not markedly affect her ability
to care for herself.
Plaintiff next argues that the ALJ improperly ignored the effect L.D.’s ODD had on
her ability to care for herself, noting that L.D. “exhibited aggressive and violent behavior
throughout her first grade year and had difficulty controlling her anger.” (Doc. 26, at 16).
There is no dispute that the ALJ fully considered L.D.’s ODD under the domain of
interacting and relating with others which, as noted, is “related, but different from” the
domain of caring for yourself. SSR 09-7p, at *4. L.D.’s violence and aggression towards
peers and adults constitutes behavior in relation to other people and properly falls under
the domain of interacting and relating with others.
Plaintiff claims that SSR 09-7p demonstrates that L.D.’s ODD falls into both
categories. She directs the Court to the following example: a boy with ODD who refuses
40

to obey a parent’s instruction not to run on a slippery surface demonstrates limitations in
both caring for yourself and interacting and relating with others because he endangers
himself and disrespects the parent’s authority. SSR 09-7p, at *4. Plaintiff’s reliance on this
example is misplaced in that the boy risked harming himself by disobeying his parent.
There is no evidence that L.D.’s refusal to listen to teachers and follow rules placed her in
harm’s way.
The only exceptions are found in L.D.’s March 2010 IEP. Occupational therapist
Ruth Blameuser indicated that L.D.’s sensory processing dysfunction caused her to engage
in “banging, leaning or slamming her body into things like wal[l]s, furniture, or lockers.” (R.
392). Another section of the report indicated that L.D. “harms . . . self.” (R. 372). The ALJ
specifically discussed the March 2010 IEP, but did not mention L.D.’s self-injurious
behavior. Defendant argues that this omission is harmless because there was no further
mention of self-injurious behavior after that date. (Doc. 37, at 17). Indeed, Plaintiff said
nothing about L.D. harming herself, the ME observed that there were no ER reports of cuts,
bruises, falls or other injuries (R. 539), and that summer she attended eight weeks of camp
with little difficulty.
On the record presented, the Court is not persuaded that the ALJ committed
reversible error by failing to mention L.D.’s self-injurious behavior. On remand, however,
the ALJ should take the opportunity to clarify her conclusions in this regard when analyzing
the caring for yourself domain.

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3.

Law of the Case Doctrine

In her initial December 26, 2006 decision, the ALJ found that L.D. had a marked
limitation in the domain of health and physical well-being based on her history of asthma.
(R. 24). In the subsequent October 5, 2010 decision, the ALJ found that L.D. at all times
had a less than marked limitation in the domain of health and physical well-being. (R. 286,
287). Plaintiff objects that this changed finding violates the law of the case doctrine and
is unsupported by the evidence.
The law of the case doctrine requires “the administrative agency, on remand from
a court, to conform its further proceedings in the case to the principles set forth in the
judicial decision, unless there is a compelling reason to depart.” Wilder v. Apfel, 153 F.3d
799, 803 (7th Cir. 1998) (citing Law v. Medco Research, Inc., 113 F.3d 781, 783 (7th Cir.
1997)). Plaintiff argues that the ALJ erred because after she considered L.D.’s obesity and
sleep apnea together with her asthma, she “somehow . . . found a lesser limitation than
when she had evaluated L.D.’s asthma on its own.” (Doc. 26, at 18). Plaintiff objects that
the ALJ did not explain why her opinion changed, and claims there was no new evidence
to contradict the earlier finding. (Id.).
Unlike the other five domains, the domain of health and physical well-being does not
categorize children by age group. Rather, “we consider the cumulative physical effects of
physical or mental impairments and their associated treatments or therapies on your
functioning.” 20 C.F.R. § 416.926a(l). Following the remand, Plaintiff submitted new
evidence regarding L.D.’s condition after December 2006. This evidence showed that
L.D.’s sleep apnea was under control with a CPAP by April 2008 (R. 472), and that she was
still doing well with the mask more than a year later in September 2009. (R. 474).
42

Moreover, despite her obesity and apnea, L.D. was doing “fairly well” with her asthma in
May 2007 (R. 459); her asthma was under “partial control” with no ER visits or nighttime
awakenings in February 2008 (R. 458); her asthma symptoms were “quite well controlled”
and she had not used any inhalers for a month in August 2008 (R. 457); and she was
“doing fine” with stable asthma in August 2009. (R. 453). Notably, Plaintiff did not submit
any additional asthma or sleep apnea records for L.D. after August 2009. Plaintiff did
provide new testimony at the September 2010 hearing, however, confirming that L.D.’s
asthma was under control with Singulair and Albuterol (R. 495-96), and that L.D. attended
day camp in the summer of 2010 and really liked the skating, swimming, bowling and
outdoor playing. (R. 506-07).
“The doctrine of law of the case is not a straitjacket,” and “is at its least rigid when
a judge is reconsidering h[er] own previous ruling.” Cadenhead v. Astrue, No. 05 C 3929,
2010 WL 5846326, at *12 (N.D. Ill. Mar. 5, 2010) (citing Avitia v. Metropolitan Club of
Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)). In stipulating to a remand, the parties
did not make any reference to L.D.’s asthma, and the ALJ fairly revisited that condition in
the context of all available evidence through August 31, 2009, including L.D.’s sleep apnea
and obesity. See Wilder, 153 F.3d at 803 (“New evidence can furnish compelling grounds
for departure from a previous ruling.”) The Court finds no error in the ALJ’s decision that
L.D. had a less than marked impairment in health and physical well-being, and the request
for remand pursuant to the law of the case doctrine is denied.
4.

Credibility Finding

Plaintiff finally argues that L.D.’s case must be remanded because the ALJ failed to
determine whether or not Plaintiff’s testimony was credible. In support of this position,
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Plaintiff directs the Court to Giles ex rel. Giles v. Astrue, in which the Seventh Circuit
remanded a child SSI case where “the ALJ did not make a credibility assessment as to [the
plaintiff’s] testimony, though the ALJ did recite some parts of the testimony.” 483 F.3d at
488-89. The court explained that:
If [the plaintiff’s] testimony was not credible, the ALJ was obligated to explain
the basis of that assessment. If, on the other hand, [the plaintiff’s] testimony
was credible, the ALJ was required to explain why the testimony did not
support a finding that [her minor son] was markedly limited in attending and
completing tasks.
Id. at 489.
Plaintiff acknowledges that the ALJ did recite some of her testimony about L.D.
joining Girl Scouts, having friends, doing well with the CPAP, and not having behavior
issues after being placed in the smaller school setting. (R. 287). Plaintiff claims, however,
that the ALJ neglected to address other testimony that supported a finding of disability. By
way of example, Plaintiff notes her testimony that L.D.: takes her CPAP mask off in the
middle of the night; got into trouble on the bus one time after transferring to the smaller
school setting; did not ask for any play dates; “had problems with hitting her” sister; and got
a write-up at summer camp. (Doc. 26, at 19).
The Court disagrees that the ALJ failed to mention any of these additional facts.
With respect to the CPAP, the ALJ noted that in April 2008, Plaintiff told Dr. D’Andrea that
L.D. was “doing quite well with the CPAP.” (R. 278). The same report stated that L.D. was
able to use the machine every night and wore it “throughout the entire night.” (R. 472).
The ALJ also observed that in September 2009, Plaintiff once again told Dr. D’Andrea that
L.D. “does well” with the CPAP. (R. 278, 474). Plaintiff did testify that L.D. sometimes

44

takes the CPAP mask off during the night, but she also conceded that L.D. wore it about
90% of the time. (R. 508).
Plaintiff is correct that the ALJ did not mention her testimony that L.D. got in trouble
on the bus and did not ask for any play dates after moving to the smaller school setting.
Yet Plaintiff herself acknowledged that the bus problems stopped after the driver started
making L.D. sit in the front, and that L.D. had a lot of friends at her old school and just did
not know that many kids at the new school yet. (R. 493, 498-99). The ALJ observed that
L.D. received a write-up at summer camp and talked back to her teacher twice after moving
to the new school. The ALJ also stated that L.D. argues with her sibling but mostly gets
along, which is consistent with Plaintiff’s testimony that they “get along pretty much. But
they do argue.” (R. 287, 505).
The Court is not persuaded that the ALJ rejected any of Plaintiff’s testimony, or that
it would have supported a finding of disability. In Buckhanon ex rel. J.H. v. Astrue, 368
Fed. Appx. 674 (7th Cir. 2010), the Seventh Circuit addressed whether an ALJ is required
to make an explicit credibility finding if she believes the plaintiff’s testimony. The court
noted that under Giles, credibility findings “should be express and reasoned” so that ALJs
“proceed cautiously before rejecting specific portions of a claimant’s testimony as not
credible.”

Id. at 678 (citing Giles ex rel. Giles, 483 F.3d at 488).

The court then

distinguished the facts of Buckhanon, where it was “plain” that “the ALJ believed the
testimony of both [the minor child] and [her grandmother].” Id. (emphasis in original). As
the court explained, “we do not see how the claimants could have been prejudiced by the
ALJ’s decision not to give a detailed explanation for her obvious reliance on their
testimony.” Id. (emphasis in original).
45

As in Buckhanon, this Court finds that the ALJ clearly believed Plaintiff’s testimony
and relied on it in making her decision in the case. The ALJ did not ignore any testimony
that would have supported a finding of disability or otherwise reject any of Plaintiff’s
statements. On these facts, the Court declines to remand the case because the ALJ failed
to make an explicit credibility finding.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment [Doc. 25]
is granted, and the Commissioner’s Motion for Summary Judgment [Doc. 36] is denied.
Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is reversed, and this
case is remanded to the Administration for further proceedings consistent with this opinion.

ENTER:

Dated: January 24, 2012

________________________________
SHEILA FINNEGAN
United States Magistrate Judge

46