Strong v. Astrue

Filing 35

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 12/12/12.(rbf, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROSALYN STRONG, ex. rel., M.H., a minor,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 11 CV 5922
Magistrate Judge Michael T. Mason

MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Plaintiff, Rosalyn Strong (“plaintiff" or “Ms. Strong"), has filed a motion for
summary judgment [18] seeking judicial review of the final decision of the Commissioner
of Social Security (“Commissioner"), pursuant to 42 U.S.C. § 1383(c)(3). Ms. Strong
pursues disability benefits on behalf of her minor child, M.H., under Title XVI of the
Social Security Act. For the reasons set forth below, plaintiff’s motion for summary
judgment [18] is granted in part and denied in part, and the case is remanded for further
proceedings consistent with this opinion.
I.

PROCEDURAL HISTORY
Ms. Strong filled an application for supplemental security income (“SSI") on

behalf of M.H. based on M.H. having “behavior problems." (R. 115-20, 144.)1 That
application alleged a disability onset date of May 7, 2008, and was denied initially and
upon reconsideration. (R. 112, 43-45, 50-53.) In response to those denials, Ms. Strong

1

Shortly thereafter, M.H. was diagnosed with Attention Deficient Hyperactivity Disorder
(“ADHD"), on May 28, 2008. (R. 182.)

sought a hearing, at which she and M.H. appeared with counsel on September 15,
2010. (R. 30-40.) The Administrative Law Judge (“ALJ") Kenneth E. Stewart denied
Ms. Strong’s claim in an opinion dated October 8, 2010. (R. 13-29.) The Appeals
Council denied Ms. Strong’s request for review (R. 1, 11-12), and Ms. Strong filed a
timely appeal to this Court. The parties have consented to our jurisdiction pursuant to
28 U.S.C. § 636(c) [9].
II.

FACTUAL BACKGROUND
M.H. was born on November 24, 1999. (R. 112.) M.H.’s ADHD is the primary

diagnosis that forms the basis of her current SSI application. (R. 41, 42.)
A.

Medical and Other History

Between December 2007 and May 2008, while in the second grade, M.H.
received ten disciplinary referrals from her school. (R. 151-61.) M.H.’s school reported
several types of problems, including multiple instances of fighting or bullying (R. 15255), an inability to sit still (R. 157, 159, 161), and other misconduct with an inability to
explain her actions. (R. 156, 160.)
On May 7, 2008, M.H.’s teacher, Heather Hop, wrote that M.H. often makes
comments regarding other students’ race or other inappropriate topics. (R. 163.) Ms.
Hop reported having to speak with M.H. or separate her from other children two or three
times a week because of something she said. (Id.) Ms. Hop indicated that outside help
would be beneficial for M.H. (Id.) On May 15, Ms. Hop wrote: "[M.H.]'s behavior is
getting out of hand. She is constantly being disrespectful to other students in the
classroom. She is saying mean things to them and then says she didn't say anything.
She also rolls her eyes at me when I correct her or mutters something under her breath.
2

I've tried taking away privileges but it doesn't seem to matter to her. I've also tried
removing her from the situation but when she returns the behavior continues and
sometimes gets worse." (R. 151.)
On May 16, 2008, Ms. Strong completed disability and function reports regarding
M.H. for the Social Security Administration's Bureau of Disability Determination Services
(“DDS"). (R. 128-39, 143-49.) Ms. Strong reported that M.H.’s abilities to communicate
and progress in learning were limited, and that M.H. “is constantly getting referrals for
being rude and not sitting in her desk." (R. 133-34, 148.) She noted that M.H. cannot
explain why she does things and that she is “very active. At time’s when she has no
reasons to be [sic]." (R. 134.) Ms. Strong also reported that, as a result of her
impairments, M.H. does not get along well with adults or her teachers, has trouble
taking care of her personal needs, and “tends to give up on things very fast." (R. 13638.) Ms. Strong also reported that when M.H. “play’s with her dolls she say very mean
things that is out of hand [sic]." (R. 138.)
On May 27, 2008, Ms. Hop completed a “Teacher Questionnaire" for DDS. (R.
168-75.) At the time, Ms. Hop had known M.H. for nine months and had spent five
hours a day with her. (R. 168.) Ms. Hop rated M.H.’s reading skills as above grade
level, her math skills as below grade level, and her written language skills as at grade
level. (Id.) Ms. Hop also rated M.H.’s performance in the six domains of functioning
relevant to childhood disability determinations, on a scale of one to five, one being “no
problem," two being “a slight problem," three being “an obvious problem," four “a
serious problem," and five “a very serious problem." (R. 169-73.) In the domain of
Acquiring and Using Information, which consisted of ten performance categories, Ms.
3

Hop found that M.H. had “an obvious problem" in one category and “no problem" in nine
categories. (R. 169.) In the domain of Attending and Completing Tasks, consisting of
thirteen performance categories, Ms. Hop found that M.H. had “an obvious problem," on
a daily basis, in two categories and “no problem" in eleven categories. (R. 170.) Ms.
Hop noted that M.H.’s behavior in this category “often create[d] a disruption in the
classroom," but she “would not classify these as severe disruptions." (Id.) Ms. Hop
also noted Ms. Strong chose not to enroll M.H. in the school’s behavioral program,
which Ms. Hop felt would have benefitted M.H. (Id., 175.)
In the domain of Interacting and Relating to Others, which consisted of thirteen
performance categories, Ms. Hop found that M.H. had “a slight problem" in five
categories and “no problem" in eight categories. (R. 171-72.) Ms. Hop noted that due
to behavior problems in this category, M.H. often “had to be moved to another seat
away from the other children" and “has a hard time making and keeping friends." (R
171.) Finally, Ms. Hop reported that she did not observe any problems with M.H.’s
functioning in the domains of Moving and Manipulating Objects, Caring for Oneself, or
Health and Physical Well-Being. (R. 172-74.)
On May 28, 2008, Sarah Lamie, a social worker at the Helen Wheeler Center,
assessed M.H. and concluded she had ADHD. (R. 178-83.) Ms. Lamie noted that
M.H.’s reported behavior problems began upon entering second grade, roughly eight
months before their meeting. (R. 179.). Ms. Lamie noted that M.H. was “very respectful
during their meeting and agreed that her behavior needs to change so that she can
have friends." (R. 182.) Ms. Lamie recommended a psychiatric evaluation and
individual therapy to help M.H. process her feelings and emotions and improve her
4

behavior. (R. 183.)
On June 24 and 25, 2008, Erwin Baukus, Ph.D., a clinical psychologist,
conducted a psychological examination of M.H. and completed a report regarding its
results. (R. 262-65.) After spending an hour with M.H. and evaluating her in various
categories, Dr. Baukus concluded that M.H. had "no psychiatric diagnosis." (R. 264.)
On July 3, 2008, A. Avva, M.D., of the Helen Wheeler Center, diagnosed M.H.
with ADHD and assigned her a Global Assessment of Functioning score of 55. (R. 27678.) Dr. Avva’s Child and Adolescent Psychiatric Evaluation report notes that M.H. was
referred by her school’s social worker, and had a history of aggression, physical
violence at school, difficulty listening and staying on task, defiance, and hyperactivity at
home. (R. 276.) Dr. Avva also noted a report that M.H. wrote a letter to her mother
saying she wanted to kill herself after her cell phone was taken away. (Id.) Dr. Avva
found that M.H. had no suicidal ideation, but marked “abnormal" under the categories of
“concentration," “energy level," and “high-risk behavior," and noted “impulsive" next to
the last category. (Id.) Dr. Avva prescribed a trial of Focalin and recommended that
M.H. continue therapy. (Id.)
On July 28, 2008, Sean Strong, M.H.’s aunt,2 filed an adult third party function
report regarding M.H. with DDS. (R. 185-92.) She reported babysitting M.H. five times
a week. (R. 185.) She noted that M.H. is unable to pay attention or sit for long periods
of time, is easily distracted, does not follow instructions, and has trouble playing with
other children because she is usually violent and kicks, bites, and hits them. (R. 186,

2

We note that both the ALJ and the Commissioner mis-identified Sean Strong as M.H.’s
“niece." (See R. 20; Df.’s Resp. at 5 [29].)

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188-89.) Based on that “violent" behavior, Sean Strong noted M.H. cannot go outside
alone and “need to be monitor [sic]." (R. 187.) She also wrote that sometimes, when
M.H. “don’t get her way she say’s she gonna kill her self [sic]." (R. 190.) Sean Strong
noted she was “very glad" M.H. was taking her medication, and that it “is a very good
thing" that M.H. was going to therapy, because by doing so, M.H. became much calmer
and easier for Sean Strong to babysit. (R. 191.)
In an August 7, 2008 progress report, Dr. Avva noted that M.H. had improved
since her last visit. (R. 317.) Dr. Avva also wrote that M.H. claims her Barbies talk to
her inside her head. (Id.) Dr. Avva found M.H. to be stable and responding well to
treatment, and that M.H. herself reported she was doing “excellent." (Id.)
On August 12, 2008, Phyllis Brister, Ph.D., reviewed some of M.H.'s medical and
other records at DDS’ request, and completed a Childhood Disability Evaluation Form
regarding M.H. (R. 300-05.) Dr. Brister found that M.H. had a marked limitation in the
domain of Interacting and Relating to Others; less than marked limitations in the
domains of Acquiring and Using Information and Attending and Completing Tasks; and
no limitation in the remaining domains. (R. 302-05.) In her comments on the Interacting
and Relating to Others domain, Dr. Brister noted that “[M.H.] is shown to have problems
at school with disruptive behavior and has lost privileges because of this." (R. 305.) In
her comments on M.H.'s less than marked limitation in the domain of Acquiring and
Using Information, Dr. Brister wrote that M.H. has “some problems with math and
working independently." (Id.) In her comments on M.H.'s less than marked limitation in
the domain of Attending and Completing Tasks, Dr. Brister found that M.H. “has a hard
time keeping quiet while working independently" and “often creates a disruption in the
6

classroom." (R. 302.) Dr. Brister ultimately concluded that while M.H. had a severe
impairment or combination of impairments, she did not meet, medically equal, or
functionally equal a Listing. (R. 300.) In making her assessment, Dr. Brister noted that
“the ADLs [activities of daily living] provided by parent appear to credble [sic]." (R. 305.)
In a September 8, 2008 progress report, Dr. Avva noted that M.H. had improved
since her last visit, had good grades, and was behaving well. (R. 314.) Dr. Avva also
noted that M.H. had been off of her medication for the two weeks prior to the visit. (Id.)
She reported that M.H. is suspicious that others are talking and laughing about or at
her, and that M.H. still hears her dolls in her ears. (Id.)
On September 24, 2008, Mary Dominguez, M.H.’s third grade teacher,
completed a Teacher Questionnaire for DDS. (R. 208-15.) At the time, Ms. Dominguez
had known M.H. for one month and spent six hours a day, five days a week with her.
(R. 208.) Ms. Dominguez rated M.H.’s reading skills “at grade level," her math skills as
“average," and her written language skills as “below grade level." (Id.) She also rated
M.H.’s performance in the six domains of functioning relevant to childhood disability
determinations. In the Acquiring and Using Information domain, Ms. Dominguez found
that M.H. had “a serious problem" in one category; “an obvious problem" in one
category; “a slight problem" in four categories; and “no problem" in four categories. (R.
209.)
In the Attending and Completing Tasks domain, Ms. Dominguez found that M.H.
had “an obvious problem," on a daily basis, in eight categories; “a slight problem," on a
daily or weekly basis, in two categories; and “no problem" in three categories. (R. 210.)
Ms. Dominguez reported that she did not observe any problems with M.H.’s functioning
7

in the remaining four domains of Interacting and Relating with Others, Moving and
Manipulating Objects, the Caring for Oneself, or Health and Physical Well-Being. (R.
211-13.) According to Ms. Dominguez, M.H. “does not have significant behavior
problems. She can act poorly but has the ability to control it. I do not feel her behaviors
cause academic problems at all." (R. 215 (emphasis in original).)
On October 1, 2008, at DDS’ request, Joseph Mehr, Ph.D., reviewed some of
M.H.'s medical and other records, and completed a Childhood Disability Evaluation
Form regarding M.H. (R. 367-72.) Dr. Mehr found that M.H. had a less than marked
limitation in the domains of Acquiring and Using Information and Attending and
Completing Tasks, and no limitation in the remaining domains. (R. 369.) In his
comments on the Acquiring and Using Information domain, Dr. Mehr noted that M.H. “is
in a regular 3rd grade class and is working on grade level in reading and math. She is
below grade level in wtitten language and has some difficulty with oral instructions [sic]."
(Id.) In his comments on the Attending and Completing Tasks domain, Dr. Mehr noted
that M.H. “is on medication for ADHD," that “her teacher indicates she has some
obvious oproblems in this area [sic]," and that “her condition is stable and is responding
well to treatment." (Id.) Dr. Mehr concluded that M.H. had a severe impairment or
combination of impairments, but that she did not meet, medically equal, or functionally
equal a Listing. (R. 372.) At the end of his report, Dr. Mehr wrote: "Allegations are
credible." (Id.)
In June of 2010, M.H.’s fourth grade teacher completed an unsigned and
undated Teacher Questionnaire for DDS. (R. 235-43.) At the time, that teacher had
known M.H. for ten months and spent six hours a day with her. (R. 235.) The teacher
8

did not rate M.H.’s reading, math, or written language skills, but did rate M.H.’s
performance in the six relevant domains of functioning. In the Acquiring and Using
Information domain, the fourth grade teacher found that M.H. had “a very serious
problem" in two categories; “a serious problem" in one category; “a slight problem" in
two categories; and “no problem" in five categories. (R. 236.) In the Attending and
Completing Tasks domain, the teacher found that M.H. had “a very serious problem," on
an hourly basis, in two categories; “a serious problem," on an hourly basis, in one
category; “an obvious problem," on an hourly or daily basis, in four categories; “a slight
problem," on an hourly or daily basis, in two categories; and “no problem" in four
categories. (R. 237.)
In the Interacting and Relating to Others domain, M.H.'s fourth grade teacher
found that M.H. had “a serious problem," on an hourly basis, in one category; “an
obvious problem," on a weekly basis, in one category; “a slight problem," on a daily
basis, in two categories; and “no problem" in nine categories. (R. 238.) The teacher
noted that due to M.H.’s behavior in this domain, behavior modification strategies had
been implemented: M.H. “has had timeouts due to the fact that she had difficulty staying
on task. She also would distract those around her." (Id.) Finally, the teacher reported
that she did not observe any problems with M.H.’s functioning in the Moving and
Manipulating Objects, Caring for Oneself, or Health and Physical Well-Being domains.
(R. 239-41.)
On September 10, 2010, M.H.’s attorney submitted a pre-hearing letter to the
ALJ summarizing portions of the record and laying out his legal arguments. (R. 24448.) While the letter discussed various teachers’ reports, among other things, it did not
9

reference the reports Ms. Strong had previously provided to DDS. (Id.)
B.

Ms. Strong’s Hearing Testimony

At the September 15, 2010 hearing before the ALJ, Ms. Strong testified that
M.H.’s behavior is intolerable at times and that she has aggressive behavior and
becomes very agitated. (R. 36, 37.) Ms. Strong stated that M.H. had violence issues at
school and problems with other students. (R. 37.) Ms. Strong also testified that M.H.
took a paperclip apart at school and was going to fight another student with it. (Id.) At
this point, however, the ALJ interrupted Ms. Strong’s testimony, noting M.H.’s presence
at the hearing as a concern. (Id.) The ALJ asked if Ms. Strong would affirm the
information in her attorney’s pre-hearing letter that summarized the attorney’s
arguments. (R. 37.) Plaintiff’s attorney, Cody Marvin, agreed to have Ms. Strong affirm
the attorney’s letter.3 (Id.) The ALJ also gave Mr. Marvin an opportunity to bring to the
ALJ’s attention any evidence not already in the record; Mr. Marvin directed the ALJ to
M.H.’s report card from the prior year and her fourth grade Teacher’s Questionnaire.
(R. 38-39.)
M.H. did not testify at the hearing before the ALJ.
C.

Post-Hearing Suspension- and Expulsion-Related Evidence
On September 30, 2010, fifteen days after the hearing before the ALJ, Ms.

Strong received notice from M.H.’s school that M.H. had been suspended for ten days,
with the possibility of expulsion, for having brought a screwdriver to school with intent to
use it as a weapon. (R. 250.) Two business days later, in a letter dated October 4,

3

Mr. Marvin was from the Law Offices of Barry A. Schultz, the same law firm currently
representing plaintiff.

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2010, M.H.’s school notified Ms. Strong that M.H. had been recommended for
expulsion, and that an expulsion hearing was scheduled for Friday, October 8, 2010.
(R. 249.) Ms. Strong’s counsel electronically submitted both of those documents to the
ALJ on October 6, 2010. (R. 251.) The ALJ issued his opinion on October 8, 2010, but
his opinion does not reference either document or the events discussed therein.
III.

LEGAL STANDARD
A.

Standard of Review

As with an ALJ’s decision concerning an adult, judicial review of a decision
denying SSI benefits to a child claimant is limited to determining whether the ALJ
applied the correct legal standards in reaching his or her decision, and whether there is
substantial evidence to support the relevant findings. Schoenfeld v. Apfel, 237 F.3d
788, 792 (7th Cir. 2001). Thus, the court must affirm the ALJ’s decision if it is supported
by substantial evidence and free from legal error. 42 U.S.C. § 405(g); Steele v.
Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). Substantial evidence is “more than a mere
scintilla of proof." Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001). It means
“evidence a reasonable person would accept as adequate to support the decision."
Murphy v. Astrue, 496 F.3d 630, 633 (7th Cir. 2007). In determining whether there is
substantial evidence, the Court reviews the entire record. Kepple, 268 F.3d at 516.
However, our review is deferential. Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.
2007). We will not “reweigh evidence, resolve conflicts, decide questions of credibility,
or substitute our own judgment for that of the Commissioner." Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003) (citation omitted).
Nonetheless, if, after a “critical review of the evidence," the ALJ’s decision “lacks
11

evidentiary support or an adequate discussion of the issues," this Court will not affirm it.
Lopez, 336 F.3d at 539 (citations omitted). While the ALJ need not discuss every piece
of evidence in the record, "[w]here an ALJ denies benefits, she must build an accurate
and logical bridge from the evidence to her conclusion." Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). Further, the ALJ “may not select and discuss only that
evidence that favors his ultimate conclusion," Diaz v. Chater, 55 F.3d 300, 308 (7th
Cir.1995), but “must confront the evidence that does not support his conclusion and
explain why it was rejected." Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004).
Ultimately, the ALJ must “sufficiently articulate his assessment of the evidence to
assure us that the ALJ considered the important evidence ... [and to enable] us to trace
the path of [his] reasoning." Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993)
(citation omitted).
B.

Disability Determination

M.H. is not eligible for SSI benefits unless she is disabled under the Social
Security Act. A child is disabled if she has a “medically determinable 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). Whether a child meets this definition is determined via a
three-step inquiry. 20 C.F.R. § 416.924(a); Murphy, 496 F.3d at 633. First, if the child
is engaged in substantial gainful activity, her claim will be denied. Id. Second, if she
does not have a medically severe impairment or combination of impairments, her claim
will be denied. Id. Third, the child’s claim will be denied unless her impairment meets,
or is medically or functionally equivalent to, one of the listings of impairments in 20
12

C.F.R. Pt. 404, Subpt. P, App. 1 (the “Listings"). Id; 20 C.F.R. § 416.902.
To determine whether an impairment is the functional equivalent of a Listing, an
ALJ must analyze its severity in six age-appropriate domains: (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(b)(1). Functional equivalence
exists, and a child qualifies for benefits, if the ALJ finds a “marked" difficulty in two
domains of functioning, or an “extreme" limitation in one. 20 C.F.R. § 416.926a(d).4
The evidence relevant to whether a child’s limitations are marked or extreme involves
both medical and nonmedical sources. 20 C.F.R. § 416.924a(b)(3). The latter may
include information from parents, teachers, and other people who know the child, and
their descriptions of relevant activities in school, at home, or in the community. 20
C.F.R. §§ 416.924a(b)(3), (e).
After noting that M.H. was a “school-aged child for purposes of disability
evaluation" (R. 19), ALJ Stewart followed the required three-step analysis. He
concluded M.H. satisfied the requirements at step one because she had “never
engaged in substantial gainful activity." (Id.) At step two, the ALJ found that M.H. had a
medically severe impairment, ADHD, which “causes more than minimal functional
limitations." (Id.) At step three, the ALJ found that M.H.’s impairments did not meet, or
medically or functionally equal, a Listing. (R. 19-25.) Specifically, the ALJ found that

4

A "marked" limitation is one that "interferes seriously" with the child’s "ability to
independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). An
"extreme" limitation "interferes very seriously" with the child’s "ability to independently initiate,
sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3)(i).

13

M.H. had less than marked limitations in the Acquiring and Using Information and
Attending and Completing Tasks domains, and found she had no limitation in the
remaining domains. (R. 23-24.)
Plaintiff asks this Court to find that the ALJ erred in his analysis. First, Ms.
Strong argues that the ALJ committed reversible error by failing to make a proper
credibility assessment of her testimony. Second, Ms. Strong asserts that the ALJ failed
to properly consider the report from M.H.’s fourth grade teacher. Finally, Ms. Strong
contends that the ALJ failed to properly evaluate M.H.’s limitations in the domain of
Interacting and Relating to others by failing to consider certain evidence. We address
those issues below.
IV.

ANALYSIS
A.

The ALJ Failed to Properly Analyze Ms. Strong’s Credibility.

Because the ALJ is in a superior position to judge credibility, the ALJ’s credibility
determination is entitled to “special deference." Scheck v. Barnhart, 357 F.3d 697, 703
(7th Cir. 2004) (citation omitted). However, the ALJ is still required to articulate his
reasoning and discuss or distinguish relevant contrary evidence. Clifford v. Apfel, 227
F.3d 863, 870 (7th Cir. 2000). Additionally, the ALJ must follow the requirements of
Social Security Ruling ("SSR") 96-7p. Whenever statements about the intensity,
persistence, or functionally limiting effects of pain or other symptoms of the underlying
impairment are not substantiated by objective medical evidence, the ALJ must make a
finding on the credibility of the statements based on a consideration of the entire case
record. SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). SSR 96-7p also provides
that an ALJ’s “determination or decision must contain specific reasons for the finding on
14

credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that weight." 1996
WL 374186, at *2.
Following its boilerplate statement regarding the necessity of making a credibility
determination, the ALJ’s opinion generally summarized, in four sentences, Ms. Strong’s
testimony and the disability reports she filed regarding her daughter’s behavior. (R. 2021.) However, the ALJ did not mention the evidence provided by Ms. Strong when
addressing the limitations caused by M.H.’s impairments in the six functional
equivalence domains. (R. 23-25.) Instead, he used Ms. Strong’s statements to
discredit other evidence supporting disability, stating that “some documents that appear
to show significant behavior problems appear to be based on the statements by the
claimant’s mother and not on actual observation." (R. 22.) But at no point did the ALJ
expressly address whether or not he found Ms. Strong to be credible. Similarly, he
never discussed what weight he gave the evidence she supplied in her testimony or
DDS reports, or why other evidence based on her statements deserved little to no
weight.
The ALJ’s failures in these respects violate the applicable regulation and Seventh
Circuit precedent. SSR 96-7p, 1996 WL 374186, at *4 (“The reasons for the credibility
finding must be grounded in the evidence and articulated in the determination or
decision. It is not sufficient to make a conclusory statement that ‘the individual’s
allegations have been considered’ or that ‘the allegations are (or are not) credible.’");
Hopgood v. Astrue, 578 F.3d 696, 700 (7th Cir. 2009) (remanding where the ALJ wrote
15

claimant’s mother was “generally credible," but failed to explain why he did not find
some of her testimony to be persuasive or to explain the reasons for his credibility
finding for the benefit of subsequent reviewers); Giles ex rel. Giles v. Astrue, 483 F.3d
483, 488-89 (7th Cir. 2007) (“Here, the ALJ did not make a credibility assessment as to
[claimant’s mother’s] testimony, though the ALJ did recite some parts of the testimony.
If [her] testimony was not credible, the ALJ was obligated to explain the basis of that
assessment. If, on the other hand, [her] testimony was credible, the ALJ was required
to explain why the testimony did not support a finding that [claimant] was markedly
limited in attending and completing tasks.").5
The ALJ’s mishandling of the credibility determination and evidence related to
Ms. Strong is further underscored by the findings of two of the DDS consultants. Drs.
Mehr and Brister found the allegations and reports of activities of daily living to be
credible. (R. 372, 305.) While the ALJ referenced the exhibit number associated with
Dr. Mehr’s report when stating that the “conclusions reached by the physicians
employed by [DDS]" deserve “some weight" (R. 22), at no point did the ALJ mention
Drs. Mehr’s or Brister’s conclusions regarding credibility, much less discuss the weight

5

It also appears that the ALJ’s ability to determine Ms. Strong’s credibility may have been
impaired by his decision to cut her hearing testimony short. (See R. 37.) Without evidence of
an individual’s demeanor, an ALJ generally cannot explain how or what he used to arrive at his
credibility determination. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010) (“The ALJ’s
credibility determinations are entitled to special deference because the ALJ has the opportunity
to observe the claimant testifying."). Thus, an ALJ lacks an adequate basis for finding against a
plaintiff’s credibility where the ALJ denies plaintiff the opportunity to present testimony on his
own behalf. White v. Barnhart, 235 F. Supp. 2d 820, 830 (N.D. Ill. 2002). We need not decide
here whether Ms. Strong’s limited hearing testimony satisfied the ALJ’s obligation to develop a
full and fair record, not least because other issues warrant remand, and because plaintiff’s
attorney at the hearing agreed to stand on the pre-hearing letter he prepared for the ALJ in lieu
of Ms. Strong testifying further. (See R. 38.) However, on remand, we urge the ALJ to allow
Ms. Strong a full opportunity to testify.

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the ALJ afforded those credibility conclusions. (Indeed, the ALJ’s opinion does not
mention Dr. Brister’s report, or its associated exhibit number, at all.) While an ALJ is not
bound by any State agency findings, he may not ignore findings regarding credibility
and must explain the weight given to them in his decision. SSR96-7p, 1996 WL
374186, at *8 (“[I]f the case record includes a finding by a State agency medical or
psychological consultant or other program physician or psychologist on the credibility of
the individual's statements about limitations or restrictions due to symptoms, the [ALJ]
must consider and weigh this opinion of a nonexamining source under the applicable
rules in 20 CFR 404.1527 and 416.927 and must explain the weight given to the opinion
in the decision."). Further, the ALJ has a duty to discuss or distinguish relevant
evidence contrary to his conclusion. Clifford, 227 F.3d at 870. As a result, the ALJ’s
failure to properly analyze Ms. Strong’s credibility warrants remand.
B.

The ALJ Failed to Properly Address the Opinions of M.H.’s Teachers.

An ALJ must “consider all relevant evidence in the case record," and this
includes opinion evidence from “other sources." SSR 06-03p, 71 Fed. Reg. 45593-03,
at **45596. “Other sources" include “[e]ducational personnel, such as school teachers,
counselors, early intervention team members, developmental center workers, and
daycare center workers." Id. at *45594. SSR 06-03p notes “[o]ften, these sources have
close contact with the individuals and have personal knowledge and expertise to make
judgments about their impairment(s), activities, and level of functioning over a period of
time." Id. at *45595. Additionally, SSR 06-03p provides that the ALJ “generally should
explain the weight given to opinions from these ‘other sources.’" Id. at *45596. The
weighing factors set forth in 20 C.F.R. § 416.927 apply to such “other sources," and
17

include the nature and extent of the relationship between the source and the individual,
the source’s qualifications and area of specialty or expertise, the degree to which the
source presents relevant evidence to support his or her opinion, and whether that
opinion is consistent with other evidence. Id. at 45595, 45596. Separately, the Seventh
Circuit requires an explanation of why strong evidence favorable to the plaintiff is
overcome by the evidence on which an ALJ relied. Giles, 483 F.3d at 488.
Here, M.H.’s second, third, and fourth grade teachers each completed reports
detailing their assessments of M.H.’s limitations in various domains. (R. 168-75, 20815, 235-43.) While the ALJ summarized those opinions, he heavily relied upon those of
M.H.’s third grade teacher, citing her report as support for each of his domain findings.
(R. 23-24.) However, the ALJ failed altogether to discuss the second grade teacher’s
report in his domain findings, adopted some of the fourth grade teacher’s opinions that
supported his conclusions, and rejected or did not discuss others that were
contradictory, all without ever articulating the weight he afforded the reports. (R. 23-24.)
The ALJ’s failures to discuss the weight he afforded these reports, or his reasons
for rejecting their contrary conclusions, warrant reversal here. By way of example, we
find it curious that the ALJ relied so heavily on the third grade teacher’s report, given
that she prepared her evaluation after knowing M.H. for one month, while the second
and fourth grade teachers prepared their reports after nine months and ten months of
observation, respectively. Cf. 20 C.F.R. § 416.927(c)(2)(i) (listing length and frequency
of interaction as factor to be used in evaluating weight of opinion evidence).
Additionally, while the ALJ relied upon the fourth grade teacher’s opinions to
support his conclusions that M.H. had no limitation in the domains of Moving About and
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Manipulating Objects, Caring for Yourself, and Health and Physical Well-Being (R. 24),
the fourth grade teacher also found that M.H. had two very serious problems and one
serious problem in the Acquiring and Using Information domain; two very serious hourly
problems, one serious hourly problem, four obvious hourly problems, and two slight
problems (one daily, one hourly) in the Attending and Completing Tasks domain; and a
serious hourly problem, as well as an obvious weekly problem, in the Interacting and
Relating with Others domain. (R. 236-378.) But the ALJ failed altogether to discuss
much of this evidence contrary to his conclusions. (E.g., R. 23 (no discussion of fourth
grade teacher’s report in ALJ’s analysis of the Acquiring and Using Information
domain).) Further, to the extent the ALJ considered some of that contrary evidence in
his analysis of the Attending and Completing Tasks domain, he misstates – and thus
appears to have underrated – the seriousness of the problems M.H.’s teachers
identified. (Compare R. 23 (stating “her teachers have indicated some obvious to
serious problems in this area") (emphasis added) with R. 237 (noting two very serious
hourly problems, one serious hourly problem, four obvious hourly problems, and two
slight problems, one daily, one hourly).) Further, the ALJ apparently relied on favorable
progress notes to dismiss the contrary teachers’ reports (see R. 23), without explaining
how such notes dating from 2008 could reflect “progress" from problems noted in
subsequently dated reports.
Thus, we cannot conclude that the ALJ appropriately considered the “other
source" evidence from M.H.’s teachers, and as a result, remand is warranted. See,
e.g., Hopgood, 578 F.3d at 700 (finding ALJ’s analysis to be deficient because, among
other things, he failed to explain why he did not credit teachers’ reports finding that the
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child had serious or obvious problems in the domain of Acquiring and Using
Information); Murphy, 496 F.3d at 634-35 (reversing ALJ’s decision where he “did not
explain why he gave no weight to the portions of the school documents which support a
finding that Nathan is disabled" and “did little to counter this evidence"); Giles, 483 F.3d
at 487-88 (reversing ALJ’s decision where he noted, among other things, that the child’s
teachers reported numerous attention problems but did not explain why such evidence
was insufficient to find a marked limitation in Attending and Completing tasks).
C.

The ALJ Failed to Properly Evaluate or Articulate his Assessment of
Other Important Evidence.

In denying benefits, the ALJ must “sufficiently articulate his assessment ... to
assure us that [he] considered the important evidence." Carlson, 999 F.2d at 181. An
ALJ has a duty to fully develop the record before drawing any conclusions and must
adequately articulate his analysis so that we can follow his reasoning. Murphy, 496
F.3d at 634; 20 C.F.R. § 416.912(d). “Thus, although the ALJ need not discuss every
piece of evidence in the record, [he] may not ignore an entire line of evidence that is
contrary to the ruling. Otherwise it is impossible for a reviewing court to tell whether the
ALJ’s decision rests upon substantial evidence." Golembiewski v. Barnhart, 322 F.3d
912, 917 (7th Cir. 2003) (citations omitted). Further, “[w]e require an explanation of why
strong evidence favorable to the plaintiff is overcome by the evidence on which an ALJ
relies." Giles, 483 F.3d at 488. Here, we find that the ALJ should rectify the following
issues on remand.
First, and as noted above, two DDS medical consultants, Drs. Brister and Mehr,
completed separate assessments of M.H.’s functioning levels in the six relevant
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domains. (R. 300, 372.) Dr. Brister concluded in August 2008 that M.H. had a marked
limitation in the Interacting and Relating to Others domain, while Dr. Mehr concluded in
October 2008 that M.H. had a less than marked limitations in the Acquiring and Using
Information and Attending and Completing Tasks domains.
Like Dr. Mehr, the ALJ concluded that M.H. had less than marked limitations in
the domains of Acquiring and Using Information, and Attending and Completing Tasks.
(R. 23.) However, the ALJ did not mention Dr. Mehr’s opinion when analyzing those
domains. Instead, the ALJ made only generic references to the DDS consultants’
opinions, stating generally that they support his conclusion that M.H.’s impairment does
not meet a Listing and his finding that she is “not disabled." (R. 19, 22.) And while the
ALJ specifically cited the exhibit containing Dr. Mehr’s report when making the latter
general statement, he gave no other indication he had considered Dr. Brister’s opinion
at all, and did not cite Dr. Mehr’s report anywhere in his domain analyses. (R. 22-25.)
That is particularly problematic, given that Dr. Brister opined, contrary to the ALJ’s
conclusion, that M.H. had a marked limitation in the Interacting and Relating to Others
domain. In generically accepting some portions of Dr. Mehr’s report, but failing
altogether to address Dr. Brister’s conflicting opinions, the ALJ failed to appropriately
assess the DDS consultants’ reports. See, e.g., SSR 96-6p, 1996 WL 374180, at *1
(July 1996) (“Findings of fact made by State agency medical and psychological
consultants ... regarding the nature and severity of an individual’s impairment(s) must
be treated as expert opinion evidence of nonexamining sources .... [ALJs] ... may not
ignore these opinions and must explain the weight given to these opinions in their
decisions."); Indoranto, 374 F.3d at 474 (an ALJ must “confront the evidence that does
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not support his conclusion and explain why it was rejected.").6
Second, the ALJ’s opinion failed to discuss, much less distinguish, contrary
record evidence pertinent to the Interacting and Relating to Others domain. As just
noted, the ALJ did not address Dr. Brister’s opinion that M.H. had a marked limitation in
this domain. Further, while the ALJ noted early in his decision that M.H.’s school
records from second grade contained “a number of discipline referrals for problem
behaviors" (R. 16), he failed to acknowledge that a number of those referrals were for
physical fights she instigated, or to mention that evidence, in his analysis of this domain.
He also failed to address M.H.’s aunt’s opinion that even with medication, M.H. has to
be constantly monitored because she would hurt other children, and Dr. Avva’s note
from the last session of record that M.H. was “suspicious" and “feels strangers are
talking and laughing about/at her." Rather, in concluding M.H. had no limitation in this
domain, the ALJ wrote only that “[M.H.] herself reported that she attends church and
Bible lessons and visits friends" to support his conclusion of no limitation. (R. 24.) On
remand, the ALJ is reminded of his obligation to confront the evidence that does not
support his conclusion and explain why he rejected it. Indoranto, 374 F.3d at 474.
Finally, the ALJ did not consider the evidence related to M.H.’s ten-day
suspension and expulsion hearing. (See R. 21 (noting Ms. Strong “admitted that he
daughter had some detentions, but had never been suspended or expelled from school
[sic]").) We acknowledge that those events occurred after the hearing before the ALJ,

6

We also note that both DDS consultants, when making their assessments, did not have the
benefit of the most recent Teacher’s Questionnaire. We respectfully suggest that on remand,
the ALJ obtain additional medical source evidence that accounts for that Questionnaire, as well
as any other pertinent evidence.

22

and that, by happenstance, plaintiff’s apparently prompt submission of the related
evidence occurred just two days before the ALJ issued his opinion. (R. 25, 251.) The
decision whether to reopen the hearing to receive “new and material evidence" is
discretionary to the ALJ. McClesky v. Astrue, 606 F.3d 351, 354-55 (7th Cir. 2010)
(citing 20 C.F.R. § 404.944). Because other aspects of this case independently warrant
remand, we need not decide whether it would have been an abuse of discretion for an
ALJ to refuse to consider this post-hearing evidence. Instead, on remand, we
respectfully instruct the ALJ to consider the evidence of suspension and possible
expulsion when evaluating M.H.’s claim.
V.

CONCLUSION
For the reasons set forth above, plaintiff’s motion for summary judgment [18] is

granted in part and denied in part. This case is remanded to the Social Security
Administration for proceedings consistent with this opinion. It is so ordered.

ENTERED:

__________________________
MICHAEL T. MASON
United States Magistrate Judge
Dated: December 12, 2012

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