Wilberton v. Astrue
Filing
30
MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 11/17/2015. (lcw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHIREETHA WILBERTON,
on behalf of M.M.W., a minor.
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, 1
Defendant.
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No. 12 C 4216
Magistrate Judge
Maria Valdez
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying the claims of M.M.W., 2 a minor, for
Disability Insurance Benefits and Supplemental Security Income. The parties have
consented to the jurisdiction of the United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). For the reasons that follow, Plaintiff’s Motion for summary
judgment or remand [Doc. No. 14] is DENIED and the Commissioner’s cross-motion
for summary judgment [Doc. No. 23] is GRANTED.
BACKGROUND
I.
PROCEDURAL HISTORY
On November 19, 2008, Shireetha Wilberton filed a claim for Supplemental
Security Income on behalf of her daughter M.M.W., a minor, alleging M.M.W.’s
Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant to
Federal Rule of Civil Procedure 25(d).
2 M.M.W. is represented by Shireetha Wilberton, her mother.
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disability since November 14, 2008. The claim was denied initially and upon
reconsideration, after which Wilberton timely requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on September 17, 2010. M.M.W.
personally appeared and testified at the hearing and was represented by counsel.
Wilberton also testified at the hearing, as did medical expert Dr. Keenan Farrell.
On October 26, 2010, the ALJ denied M.M.W.’s claim for Supplemental
Security Income, finding her not disabled under the Social Security Act. The Social
Security Administration Appeals Council then denied Wilberton’s request for
review, leaving the ALJ’s decision as the final decision of the Commissioner and,
therefore, reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v.
Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.
FACTUAL BACKGROUND 3
A.
Background
M.M.W. was born on October 9, 1999 and was ten years old at the time of the
ALJ hearing.
B.
Medical Evidence
M.M.W. was referred to occupational therapy in 2003 because she was having
difficulty playing with her peers and understanding directions and questions, and
because she was not meeting developmental milestones. (R. 256-57.) She worked
with a therapist through July of 2005. A 2004 therapy evaluation revealed that she
did not play well with others and still needed assistance tying shoes and using a
zipper. (R. 292.) A speech and language evaluation, also from 2004, concluded that
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The following facts from the parties’ briefs are undisputed unless otherwise noted.
2
she had moderate to severe delays in language receptiveness and a moderate delay
in expressiveness. (R. 269-70.) In 2005, an occupational therapy evaluation
summary specified that M.M.W. became easily frustrated when performing tasks
and required constant praise in order to complete those tasks. (R.294.)
In 2008, M.M.W. was referred to a psychiatrist for assessment due to
problems at school. The assessment concluded that she was “explosive, aggressive,
and ready to fight with her peers and siblings.” (R. 222.) The report also noted that
M.M.W.’s teachers had reported that she was “socially unwell,” that M.M.W. had
behavioral problems, and that she reported bad dreams once a week. Id. M.M.W.
also experienced nosebleeds and would pick her nose to attempt to make it bleed in
order to be excused from school. Id. M.M.W. was diagnosed with attention deficit
hyperactivity disorder (ADHD) and prescribed Focalin in 10 milligram doses. (223.)
In a follow-up appointment, M.M.W. reported experiencing stomach aches a sideeffect of the medication and, as a result, her dosage was reduced to 5 milligrams. (R.
224.) However, experience proved that 5 milligrams was not a strong enough dose,
and M.M.W.’s dosage was later changed to 5 milligrams in the morning and 2.5
milligrams in the afternoon. (R. 226.) In a late January 2009 session, it was noted
that M.M.W. improved with Focalin and was better focused, although M.M.W.
remained behind in school (R. 244.) Continued progress was reported in April 2009,
(R. 245.), and November 2009, (R. 253), although M.M.W.’s dosage of Focalin was
increased to 10 milligrams. (R. 253.) At the last appointment in the record,
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M.M.W.’s mother reported worsening symptoms, and M.M.W.’s Focalin dosage was
increased to 15 milligrams. (R. 255.)
As part of the application process, M.M.W.’s records were reviewed by two
agency medical consultants, Dr. Ronald Havens in late January 2009 and Dr.
Patricia Beers in June 2009. Both concluded that M.M.W. had a severe impairment,
but that the impairment did not meet, medically equal, or functionally equal any
Listed impairment. (R. 238, 246.) Both Drs. Havens and Beers found that M.M.W.
had less than marked limitations in all domains of functioning, including the
domains of acquiring and using information, attending and completing tasks, and
interacting and relating with others. (R. 240, 248.) Accordingly, both Drs. Havens
and Beers concluded that M.M.W. was not disabled. (R. 243, 251.)
C.
Evidence from School
M.M.W.’s teacher also submitted an evaluation as part of the application,
which was completed in early January 2009. With respect to acquiring and using
information, the teacher noted that M.M.W. had difficulty working independently
and frequently requested assistance and attention; she found that M.M.W. had “an
obvious problem” on a majority of relevant measures. (R. 229.) With respect to
attending and completing tasks, the teacher noted that M.M.W. had “a difficult time
not disrupting others during work periods throughout the day. This happens on a
frequent basis.” (R. 230.) However, the teacher found that M.M.W. had a slight
problem on most key activities, with a serious problem “working without distracting
self or others.” Id. With respect to interacting and relating with others, the teacher
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noted that M.M.W. “consistently seeks both positive and negative attention.” (R.
231.) She also noted that M.M.W. had a slight or no problem in all of the related key
areas except expressing anger appropriately and seeking attention appropriately,
which were an obvious problem and a serious problem respectively. Id.
In 2010, an Individualized Education Program (IEP) was formed for M.M.W.
at her school. According to the IEP, M.M.W. was performing below grade level in all
academic areas. (R. 312.) She scored in the eighth percentile in one standardized
test relating to language arts, and her evaluator noted that she had difficulty
reading and independently answering questions. (R. 314.) In terms of
developmental and functional needs, it was noted in the IEP that M.M.W. had
ability but was not “applying herself,” was “inconsistent in her efforts,” and would
benefit from additional time and attention on schoolwork. (R. 305.)
D.
Plaintiff’s Testimony
M.M.W. testified at the hearing that she was able to bathe, dress, and feed
herself. She also performed limited chores, cleaning her room and taking out the
garbage. At school, she received help from “special teachers” during the school day,
but could add, subtract, and multiply. M.M.W. stated that she does her homework.
M.M.W. also testified that she would get into fights and verbal altercations weekly
at her school, and that she would get in trouble at school for talking with other
students instead of doing her work. She also stated that, sometimes when angered,
she would make her nose bleed. Although M.M.W. takes Focalin every day, she still
has trouble concentrating on schoolwork. M.M.W. testified that taking Focalin
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caused her “to see things moving around,” and that she hears birds chirping and
people talking when she takes her medication. (R. 61.)
E.
Mother’s Testimony
Wilberton, M.M.W.’s mother, also testified at the hearing. She stated that
M.M.W. had a speech impediment, although her problem had improved through
therapy. Although M.M.W. had been barely passing her classes, she had been
continued to fourth grade based on the formation of an IEP. Her mother stated that
M.M.W. does not complete her homework independently, but instead needs someone
to sit with her in order to help her complete her work. She also testified that
M.M.W. had been “hearing voices” since she began taking Focalin. Wilberton also
stated that M.M.W. has problems sleeping and also has nightmares. However, she
also acknowledged that M.M.W.’s ability to focus had improved after she had begun
taking Focalin. (R. 71-72, 77-78.)
F.
Medical Expert Testimony
Dr. Keenan Farrell, a licensed clinical psychologist, also testified. He
recognized a diagnosis of ADHD and found that M.M.W.’s condition was severe, but
that her condition did not medically or functionally equal a listing. Dr. Farrell
testified that M.M.W. had a marked limitation in interacting and relating to others.
However, Dr. Farrell also stated that M.M.W. had less-than-marked limitations in
acquiring and using information, attending and completing tasks, caring for herself,
and health and physical well-being, and had no limitation in moving about and
manipulating objects.
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G.
ALJ Decision
The ALJ found at step one that M.M.W. had not engaged in substantial
gainful activity since her application date of November 19, 2008. At step two, the
ALJ concluded that M.M.W. had the severe impairment of attention deficit
hyperactivity disorder. At step 3, however, the ALJ concluded M.M.W.’s impairment
did not meet or medically equal a Listing, after noting that no physician had
indicated findings sufficient to satisfy a listing. After discussing the evidence
presented in the case, the ALJ concluded that M.M.W. had less-than-marked
limitations in acquiring and using information, attending and completing tasks,
interacting with and relating to others, and caring for herself, and that she had no
limitation in moving about and manipulating objects or health and physical wellbeing. Accordingly, the ALJ concluded that M.M.W.’s impairment did not
functionally equal a listing, and that she therefore was not disabled.
DISCUSSION
I.
ALJ LEGAL STANDARD
For a child to qualify as disabled and thus eligible for SSI, she must have a
“medically determinable physical or mental impairment, which results in marked
and severe functional limitations . . . 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). The
regulations provide for a three-step framework for analyzing the disability claims of
children. See 20 C.F.R. § 416.924(a). First, the ALJ must determine if the child is
engaged in substantial gainful activity; if so, there will be a finding of no disability.
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Second, if the child does not have a severe medical impairment or combination of
impairments, then there will also be a finding of no disability. Third, the ALJ must
determine if the severe impairment(s) meet, medically equal, or functionally equal
the Listings of Impairments found at 20 C.F.R. pt. 404, subpt. P, App. 1 and also
meet the duration requirement. If so, that will lead to a finding of disability.
To determine whether an impairment is functionally equivalent to a Listing,
the ALJ must analyze the severity of the impairment in six 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.” Hopgood v. Astrue, 578 F.3d 696,
(7th Cir. 2009); see 20 C.F.R. § 416.926a(b)(1). An impairment (or combination
thereof) “must be of listing-level severity; i.e., it must result in ‘marked’ limitations
in two domains of functioning or an ‘extreme’ limitation in one domain.” 20 C.F.R. §
416.926a(a). A “marked” limitation is found when the impairment(s) “interferes
seriously with [the child’s] ability to independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(2)(i). A “marked” limitation also includes “a
limitation that is ‘more than moderate’ but ‘less than extreme.’” Id. An “extreme”
limitation exists when the impairment(s) “interferes very seriously with [the child’s]
ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(3)(i). An “extreme limitation,” however, “does not necessarily mean a
total lack or loss of ability to function.” Id.
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II.
JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is
limited to determining whether the ALJ’s findings are supported by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in the evidence, or deciding questions of credibility. Skinner, 478
F.3d at 841. Where conflicting evidence would allow reasonable minds could differ
as to whether a claimant is disabled, a reviewing court “must nevertheless affirm
the ALJ’s decision denying her claims if the decision is adequately supported.” Elder
v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
A reviewing court “examine[s] the ALJ’s decision to determine whether it
reflects a logical bridge from the evidence to the conclusions sufficient to allow . . . a
reviewing court . . . to assess the validity of the agency’s ultimate findings and
afford [a claimant] meaningful judicial review.” Moore v. Colvin, 743 F.3d 1118,
1121 (7th Cir. 2014); see also Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007)
(“An ALJ has a duty to fully develop the record before drawing any conclusions . . .
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and must adequately articulate his analysis so that we can follow his reasoning . . .
.”). The ALJ is not required to address “every piece of evidence or testimony in the
record, [but] the ALJ’s analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). And an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994); see
Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“This ‘sound-bite’ approach
to record evaluation is an impermissible methodology for evaluating the evidence.”).
III.
ANALYSIS
Wilberton argues that the ALJ’s erred by failing to adequately evaluate
whether M.M.W.’s impairment both medically met and functionally equaled Listing
112.11. She contends that the ALJ improperly failed to consider evidence which
would have proven disability and, therefore, that the ALJ’s analysis was improper.
But because the ALJ considered that evidence presented and because his decision is
otherwise supported, the ALJ did not err and his decision is affirmed.
A.
Medical Equivalence
M.M.W. argues first that the ALJ erred in deciding that her impairment did
not meet listing 112.11. She claims that, in reaching his conclusion, the ALJ failed
to adequately consider the notes of her treating psychiatrist and classroom teacher,
her IEP, and her low scores on standardized tests.
“[A]lthough an ALJ does not need to discuss every piece of evidence in the
record, the ALJ may not analyze only the evidence supporting her ultimate
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conclusion while ignoring the evidence that undermines it,” and an “ALJ must
confront the evidence that does not support her conclusion and explain why that
evidence was rejected.” Moore, 743 F.3d at 1123. In this case it is true that the ALJ
did not mention the specific pieces of evidence identified by M.M.W. in the
paragraph of the opinion in which he reached his step 3 conclusion. However, in his
survey of the evidence elsewhere in the opinion, the ALJ conducted an extensive
analysis of the evidence of record in the case and specifically discussed the evidence
that M.M.W. claims was ignored, including her 2008 psychiatric evaluation, the
later reports of her psychiatrist, the report of agency psychiatrist Dr. Havens, and
M.M.W.’s teachers’ evaluations. (R. 13-16.)
Wilberton therefore appears to argue that the ALJ erred because his detailed
discussion of the evidence she cites was not included in the paragraph containing
his conclusion on meeting Listing 112.11. But “[t]here is no requirement of such tidy
packaging.” Buckhanon ex rel. J.H. v. Astrue, 368 F. App’x 674, 678-79 (7th Cir.
2010). Instead, a reviewing Court “read[s] the ALJ’s decision as a whole and with
common sense.” Id. (citing Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004))
(finding no error where, “[a]lthough the ALJ cited the listings she considered and
discussed the evidence of [the child’s] impairments in separate parts of the decision,
[the claimant] treat[ed] the finding as unreasoned because the ALJ did not
incorporate that information within a single paragraph”). As the Seventh Circuit
has specified, “[b]ecause it is proper to read the ALJ’s decision as a whole, and
because it would be a needless formality to have the ALJ repeat substantially
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similar factual analyses at both steps three and five,” a reviewing court “consider[s]
the ALJ’s treatment of the record evidence in support of both his conclusions at
steps three and five.” Rice, 384 F.3d at 370 n.5. In this case, where the ALJ
addressed the evidence M.M.W. argues was overlooked in a separate part of the
opinion, it cannot be said that the ALJ ignored an entire line of evidence in reaching
his conclusion. The ALJ did not err on this account.
To the extent that Wilberton argues that the ALJ’s determination was in
error because substantial evidence would have supported a finding that M.M.W.
met the Listing, this immaterial to the Court’s review. Instead, “so long as, in light
of all the evidence, reasonable minds could differ concerning whether [the claimant]
is disabled,” this court “must affirm the ALJ’s decision denying benefits.” Schmidt v.
Astrue, 496 F.3d 833, 842 (7th Cir. 2007) (quoting Books v. Chater, 91 F.3d 972, 978
(7th Cir.1996)); see also Elder, 529 F.3d at 413. In this case, the ALJ correctly noted
that all of the medical opinions in the record had concluded that M.M.W. was not
disabled at step 3, which provides substantial evidence for his conclusion. See
Buckhanon, 368 F. App’x at 679 (“The ALJ expressly relied upon the medical
judgment of the state-agency consultants [in determining medical equivalence], and
their uncontradicted opinions constitute substantial evidence.”). The ALJ did not
err in determining that M.M.W.’s impairment did not meet Listing 112.11.
B.
Functional Equivalence
M.M.W. also argues that the ALJ erred when he determined that her
impairment did not functionally equal Listing 112.11. Wilberton contends the ALJ
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erred when he found M.M.W.’s impairment to be less-than-marked in three
domains. Similar to her claims regarding medical equivalence, Wilberton argues
that the ALJ failed to consider evidence contradicting his conclusion when he
determined that M.M.W.’s limitations in acquiring and using information, attending
and completing tasks, and interacting and relating to others. See 20 C.F.R. §§
416.226a(g)-(i). However, while the ALJ’s discussion of the evidence was not
optimally organized, he nonetheless adequately considered the evidence presented
in making his decision, which is in turn supported his decision with substantial
evidence. Accordingly, the ALJ did not err.
1. Acquiring and using information
Wilberton argues that that ALJ erred in determining that M.M.W. was not
markedly limited in acquiring and using information. See 20 C.F.R. § 416.926a(g);
SSR 09-3p, 2009 WL 396025. 4 She first contends that the ALJ failed to adequately
discuss the evidence contradicting his finding by failing to consider portions of
M.M.W.’s IEP which found her eligible for an extended school-year program, as well
as teacher evaluations noting low test scores and difficulty concentrating and
completing tasks. This characterization of the decision, however, is incorrect.
As with the ALJ’s finding on medical equivalence, it is true that the ALJ did
not present a detailed discussion of the evidence cited by Wilberton in the
paragraph where stated his decision on this domain. (R. 17.) However, earlier in the
Interpretive rules, such as Social Security Rulings (ASSR@), do not have force of law but
are binding on all components of the Agency. 20 C.F.R. ' 402.35(b)(1); accord Lauer v. Apfel,
169 F.3d 489, 492 (7th Cir. 1999).
4
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opinion the ALJ gave an extensive narrative discussion of M.M.J.’s diagnosis of
ADHD, the symptoms of the impairment, and her course of treatment prior to
reaching her conclusions as to functional limitations, and noted his reason for
discounting this evidence. There, the ALJ specifically referenced the teacher’s
evaluation, noted the problems that the teacher had identified, and determined to
give the opinion “moderate weight.” (R. 15.) However, the ALJ noted that the record
indicated that M.M.W.’s condition had improved since the evaluation, which took
place prior to the reports indicating her improvement with her medication. Id. The
ALJ also discussed the IEP specifically, referencing the low test scores and
M.M.W.’s difficulty concentrating, but found this contradicted by the IEP’s
conclusion that M.M.W. had the ability to improve but had put forth inconsistent
efforts. Id. And in the section of the decision where the ALJ addressed this domain
explicitly, he noted the IEP and specifically identified the low test scores and
reports that M.M.W. had difficulty focusing and following instructions.
As stated above, while an ALJ may not ignore evidence contradicting his
ultimate opinion, he need only “minimally articulate his or her justification for
rejecting or accepting specific evidence of a disability.” Rice, 384 F.3d at 371
(internal quotation marks and citation omitted). In this case, where the ALJ
addressed the contrary evidence and linked that evidence to his ultimate finding, he
appropriately built a “logical bridge” from the evidence to his conclusion. See
Washington ex rel. Stewart v. Barnhart, 481 F. Supp. 2d 905, 915 (N.D. Ill. 2007)
(“Because this Court can track the ALJ’s reasoning regarding the evidence and is
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certain that the ALJ considered all evidence that is important, this Court finds the
ALJ’s decision meets the minimum articulation standard.”).
Wilberton also argues that the ALJ failed to give appropriate weight to her
testimony and to M.M.W.’s teacher’s evaluation, and that the ALJ should have
found M.M.W.’s responses at the hearing indicative of disability. This Court,
however, may not “reweigh evidence, resolve conflicts in the record, decide
questions of credibility, or, in general, substitute [its] own judgment for that of the
Commissioner. [Its] task is limited to determining whether the ALJ’s factual
findings are supported by substantial evidence.” Young v. Barnhart, 362 F.3d 995,
1001 (7th Cir. 2004) (internal citation omitted). In addition to his survey of the
evidence which noted that three agency physicians had concluded that M.M.W.’s
limitations were less-than marked in this domain, the ALJ also pointed to evidence
from M.M.W.’s teacher’s report and her IEP in support of her finding, as well as
testimony from M.M.W.’s mother regarding her capabilities in reaching his decision.
The ALJ’s decision on this point was supported by substantial evidence, and he did
not err in finding that M.M.W. had less than marked limitations in this domain.
2.
Attending and completing tasks
Wilberton also argues that the ALJ erred in finding that M.M.W. did not
have a marked limitation in attending and completing tasks. See 20 C.F.R. §
416.926a(h)(3); SSR 09-4p, 2009 WL 396033. Wilberton’s arguments on this point
also consist largely of a disagreement with the ALJ about the weight due to
competing pieces of evidence: she disputes the weight given to the ALJ’s findings
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that M.M.W. helped with chores at home and that M.M.W. takes her medication
without prompting, as well as his evaluation of M.M.W.’s performance at the
hearing. Wilberton argues that the ALJ’s evaluation of the evidence was flawed
because, although M.M.W. stated she completed chores at home, she did so only
when bored. And Wilberton argues that, had the ALJ questioned her more robustly
at the hearing, he would have “seen more of her comprehension and communication
difficulties,” which would have altered his analysis. (Clmt.’s Mot. at 15.)
As stated above, it is not for this Court to reweigh the evidence in a Social
Security case; instead, a reviewing court examines the decision to determine
whether it was supported by evidence which “a reasonable person would accept . . .
as adequate to support the conclusion.” See Young, 362 F.3d at 1001. While the
evidence in the case could have been viewed in a different manner, the ALJ
undertook an extensive discussion of the medical evidence as described above prior
to making his findings. Relevant to this domain, the ALJ not only discussed the
evidence raised by Wilberton, but also noted that evidence from both state agency
medical consultants had concluded the limitation in this domain were less-than
marked. (R. 18.) Furthermore, he noted that Wilberton had testified that M.M.W.’s
Focalin prescription had improved her functioning, and that M.M.W.’s teacher had
noted that—with the exception of working without distracting other students—
M.M.W.’s problems in this area were “generally slight.” (R. 18.) This evidence is
“sufficient for a reasonable person to accept as adequate to support the [ALJ’s]
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decision.” Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). The ALJ did not err
in finding that M.M.W.’s impairment was less-than marked in this domain.
3.
Interacting and relating to others
Wilberton also argues that the ALJ erred in finding that M.M.W. did not
have a marked limitation in interacting and relating with others. See 20 C.F.R.
§416.926a(i); SSR 09-5p, 2009 WL 396026. Wilberton claims that the ALJ
improperly rejected the testimony of the testifying medical expert—who determined
that M.M.W. had a marked limitation in this domain—without providing sufficient
grounds for doing so.
In support of her argument, Wilberton relies on Patino v. Astrue, 574 F.
Supp. 2d 862, 871 (N.D. Ill. 2008). In that case, a psychologist had initially testified
at the hearing that, within the domain of “acquiring and using information,” the
child had a “marked” limitation; later in her testimony, however, the psychologist
stated that aspects of the child’s limitation were “extreme.” Id. at 868. The ALJ’s
decision, however, did not address the psychologist’s testimony at all; instead, it
simply stated that the decision was made after “ ‘consider[ing] all of the evidence of
the record, including the medical records and other evidence’ as well as ‘testimony
show[ing] that claimant has a severe learning disability in reading.’ ” Id. at 870
(internal quotation marks omitted). In reviewing the decision, the district court
found that the ALJ had failed to sufficiently consider the psychologist’s testimony
on this domain because the opinion “never refer[ed] to [the expert] by name or, more
importantly, discusse[d] her substantial testimony at any length.” Id. at 870. The
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Court found this particularly problematic given the expert’s “conflicting statements
as to whether Patino showed an ‘extreme’ versus ‘marked’ limitation.” Id.
M.M.W.’s case, however, is distinguishable from Patino. Here, the ALJ
explicitly discussed the medical expert’s opinion and noted his reasons for
discounting that opinion, including contrary testimony from state agency
psychologists and evidence from M.M.W., her mother, her teacher, and her IEP. (R.
19.) Furthermore, although occurring earlier in the opinion as described above, the
ALJ gave a detailed account of the expert’s testimony, (R. 16), and a detailed
account of the evidence referenced later in discounting that testimony. (R. 13-16.)
Patino is simply not applicable to the facts of this case, where the ALJ explicitly
addressed the medical expert’s conclusion and the evidence contradicting it before
determining not to credit the opinion. The ALJ did not err on this point.
Wilberton also argues that the ALJ selectively discussed the evidence by
failing to consider testimony from M.M.W., Wilberton herself, and M.M.W.’s teacher
as to the extent of M.M.W.’s limitations. However, again that is simply not the case,
as the ALJ gave a detailed examination of these points in his summary of the
evidence. (R. 13-16) And even in the paragraph stating his conclusion on this
domain, the ALJ noted the evidence that Wilberton argues was overlooked—that
M.M.W. had been involved in altercations with other students in the past and that
M.M.W.’s teacher has stated that M.M.W. often seeks attention inappropriately—
before concluding that evidence from M.M.W.’s IEP, her teacher’s evaluation, and
the agency medical consultants contradicted this finding. (R. 19.) As “an ALJ need
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only ‘minimally articulate his or her justification for rejecting or accepting specific
evidence of a disability,’ ” Rice, 384 F.3d at 371, the ALJ did not err. It is clear that
the ALJ considered the evidence raised by M.M.W. in reaching his decision on this
domain, and “the ALJ satisfied his minimal duty to articulate his reasons and make
a bridge between the evidence and the outcome.” Id.
Additionally, even if the ALJ erred in rejecting the medical expert’s
testimony, such an error was harmless. Harmless error in a Social Security case
occurs where a reviewing Court “can say with great confidence” that “no reasonable
ALJ would reach a contrary decision on remand.” See McKinzey v. Astrue, 641 F.3d
884, 892 (7th Cir. 2011). In order to prove disability based on functional equivalence
to a listing, as Wilberton argues she had done, a claimant must show an
impairment “resulting in ‘marked’ limitations in two domains of functioning or an
‘extreme’ limitation in one domain.” 20 C.F.R. § 416.926a(a). In this case, M.M.W.
does not contend that her limitations in any domain were “extreme,” only that the
ALJ erred in failing to find them “marked” in the three domains described above.
But, as discussed above, the ALJ did not err in finding that M.M.W. was not
markedly limited in the first two domains. Therefore, even if the ALJ should have
credited the testifying expert’s opinion and found M.M.W. markedly limited in
interacting and relating to others, this would not result in a finding of disability.
Even if the ALJ erred in this respect, no ALJ would reach a different decision on
remand, and such an error would be harmless.
19
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment or
remand [Doc. No. 14] is DENIED and the Commissioner’s cross-motion for
summary judgment [Doc. No. 23] is GRANTED.
SO ORDERED.
ENTERED:
DATE:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
November 17, 2015
20
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