Brown v. Social Security Administration

Filing 26

MEMORANDUM Opinion and Order Signed by the Honorable Sheila M. Finnegan on 7/29/2015: Plaintiff's motion for summary judgment is denied, as is her motion to transfer the case to Pennsylvania 23 . Defendant's motion for summary judgment 20 is granted. The Clerk is directed to enter judgment in favor of Defendant. Civil case terminated. [For further details see memorandum opinion and order.] Mailed notice. (is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NINA L. BROWN, o/b/o S.J.B., a minor,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 14 C 5095
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiff Nina L. Brown, proceeding pro se, is seeking to recover Supplemental
Security Income (“SSI”) on behalf of her minor daughter, S.J.B., under Title IX of the
Social Security Act. 42 U.S.C. § 1382c(a)(3)(C). The Acting Commissioner of Social
Security (“Commissioner” or “Defendant”) denied the application for benefits at all levels
of administrative review, prompting this appeal.

The parties consented to the

jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. ' 636(c), and
filed cross-motions for summary judgment. After careful review of the record, the Court
now grants Defendant’s motion, denies Plaintiff’s motion, and affirms the decision to
deny S.J.B. benefits.1
PROCEDURAL HISTORY
Plaintiff applied for SSI on July 18, 2011, alleging that her then 6-year-old
daughter S.J.B. had been disabled since February 8, 2007 due to attention deficit
hyperactivity disorder (“ADHD”). (R. 185, 220). The Social Security Administration
denied the application initially on September 7, 2011, and again on reconsideration on
1

In light of this determination, there is no reason to consider transferring this case to
Pennsylvania, as Plaintiff has requested. Her motion in that regard [Doc. 23] is denied.

November 29, 2011. (R. 75-80, 84-88). Plaintiff filed a timely request for hearing, and
on August 23, 2012, she and S.J.B. both appeared before Administrative Law Judge
Joel G. Fina (the “ALJ”). (R. 45). The ALJ heard testimony from Plaintiff and S.J.B.,
who were represented by counsel, and from medical expert Lawrence James
Hagerman, M.D. (“ME Hagerman”), a board-certified pediatrician. (R. 44, 63).
To accommodate Plaintiff’s request to submit some additional medical and
school documents, the ALJ kept the record open and then held a supplemental hearing
on April 15, 2013. This time, the ALJ heard testimony from Plaintiff, who was still
represented by counsel, and from Kathleen M. O’Brien, Ph.D. (“ME O’Brien”), a boardcertified forensic psychologist. (R. 164, 452). Shortly thereafter, on May 2, 2013, the
ALJ found that S.J.B. is not disabled because she does not have an impairment or
combination of impairments that meets or functionally equals the listings. (R. 22-37).
The Appeals Council denied Plaintiff’s request for review on April 17, 2014, (R. 11-13),
and Plaintiff now seeks judicial review of the ALJ’s decision, which stands as the final
decision of the Commissioner.
In support of her request for reversal or remand, Plaintiff argues that (1) she has
submitted new and material evidence to this Court supporting a remand under sentence
six of 42 U.S.C. § 405(g); and (2) the ALJ’s decision to deny benefits is not supported
by substantial evidence.
BACKGROUND
S.J.B. was born on December 11, 2004 and was 8 years old on the date of the
ALJ’s decision. (R. 185). At the time of the August 23, 2012 hearing, S.J.B. was living
with her mother in a shelter and was about to start attending the second grade at

2

Dewey Elementary School. (R. 49-50, 61). The record reflects a generally insecure
living situation with frequent periods of homelessness and relocations. (R. 237, 257,
307, 346, 349).
A.

Medical and Educational History
1.

May 10, 2010 through July 18, 2011

The first available record is from May 10, 2010 when Plaintiff took 5-year-old
S.J.B. for a psychiatric evaluation with Deirdre Dupre, M.D., at Advocate Illinois Masonic
Behavioral Health Services. Plaintiff reported that she and S.J.B. had been living in a
shelter since February 2010 and S.J.B. was exhibiting some troubling behaviors,
including hitting her teachers and intentionally declining to follow instructions. She was
also physically aggressive with other children, and had difficulty controlling her anger,
sharing and compromising.

(R. 342, 348-49).

During the examination, S.J.B. was

cooperative, friendly, and interpersonally connected with good eye contact, but also
hyperactive and minimally attentive. She demonstrated linear thoughts, intact attention,
good mood, and fair judgment and insight, as well as normal affect, orientation and
memory. (R. 344, 349). Dr. Dupre diagnosed rule out ADHD and rule out adjustment
disorder, and discussed starting S.J.B. on medication after she was evaluated by a
primary care physician. (R. 349-50).
When Plaintiff took S.J.B. to see Dr. Dupre again on May 27, 2010, S.J.B.
continued to have attention and behavior issues, but her exam was essentially normal
with no evidence of hyperactivity.

Dr. Dupre affirmatively diagnosed ADHD and

prescribed methylphenidate CD (brand name Metadate). (R. 356). S.J.B. did very well
with the medication and showed improvement at her next two appointments with Dr.

3

Dupre on June 9 and July 20, 2010. (R. 351, 353). By October 2010, however, Plaintiff
and S.J.B. had moved to Georgia so all treatment with Dr. Dupre ceased. Plaintiff and
S.J.B. lived in a shelter in Georgia until June 2011, at which point they moved back to
Chicago. (R. 362, 381). There are no records from that eight-month period, but Plaintiff
applied for disability benefits on July 18, 2011, shortly after their return.
2.

August 2011 through December 2011

On August 10, 2011, Laura J. Higdon, Ph.D., conducted a Psychological
Evaluation of 6-year-old S.J.B. for the Bureau of Disability Determination Services
(“DDS”). (R. 362-65). Plaintiff reported that S.J.B. had finished Kindergarten in Georgia
and did not participate in any special education programs. (R. 363). S.J.B. last took
Metadate in December 2010, but Plaintiff said she planned to find S.J.B. a psychiatrist
for further medication management.

(R. 362, 365).

On examination, S.J.B. was

somewhat hyper but demonstrated intact thought process, clear speech, and adequate
eye contact, and she was generally cooperative and responsive to questioning. (R.
364). Dr. Higdon diagnosed ADHD. (R. 365).
A little less than a month later, on September 6, 2011, Donald Henson, Ph.D.,
completed a Childhood Disability Evaluation Form of S.J.B. for DDS. (R. 366-67). Dr.
Henson found that S.J.B. has less than marked limitation in attending and completing
tasks and interacting and relating with others, and no other limitation in any functional
domain. (R. 368-69). Shortly thereafter, on September 23, 2011, S.J.B.’s First Grade
teacher at Washington Irving Elementary School, Claire Martin, completed a Teacher
Questionnaire regarding S.J.B.’s functioning. (R. 237-44). Ms. Martin confirmed that
S.J.B. did not receive any special services or an Individualized Education Program

4

(“IEP”) while in Georgia, and that she was similarly enrolled in regular education at
Irving. (R. 237, 244). Ms. Martin identified no problems in any domain and stated that
S.J.B. was “conducting herself age appropriate” and “her academics are developing
adequately.” (R. 244).
On October 18, 2011, Plaintiff took S.J.B. back to Dr. Dupre seeking treatment
for her aggressive, impulsive, “abnormal” behavior. (R. 379, 381). More than a year
had passed since S.J.B.’s last appointment, and Plaintiff reported that her daughter was
being disruptive in class, talking back to teachers, and being aggressive with other
children by grabbing and hitting them.

She was also having difficulty establishing

friendships, though Plaintiff acknowledged that could be due to the recent moves. (R.
381). At the same time, Plaintiff confirmed that S.J.B. had been “much better” while on
medication.

(Id.). Dr. Dupre noted that S.J.B. exhibited minimal attention, but her

behavior and functioning was otherwise normal with no evidence of hyperactivity. (R.
379-80).
At a follow-up appointment on November 16, 2011, Plaintiff told Dr. Dupre that
S.J.B. had enrolled as a First grader in regular education classes at Prairie Oak
Elementary School. (R. 402). On examination, S.J.B. was cooperative and friendly with
good eye contact, though at times she spoke “harsher/more direct[] than needed.” She
exhibited linear thought process, intact attention, good mood, and fair judgment and
insight, and Dr. Dupre once again diagnosed ADHD.

(R. 403).

Dr. Dupre

recommended that Plaintiff work with a primary care physician to get S.J.B. back on
medication. (R. 403). Two days later, on November 18, 2011, Michael J. Schneider,
Ph.D., affirmed Dr. Henson’s finding that S.J.B. has less than marked limitation in

5

attending and completing tasks and interacting and relating with others, and no
limitation in any other domain of functioning. (R. 388-91).
In November and December 2011, S.J.B. received two Red Light Behavior Notes
from her First Grade teacher, Bonnie Polis. Ms. Polis reported that S.J.B. was having
difficulty following directions in class, threw cards at another student, and was disruptive
during a holiday program. The notes requested that Plaintiff speak to S.J.B. about
following directions and being kind and respectful. (R. 274, 275).
3.

2012

Plaintiff took S.J.B. back to see Dr. Dupre on January 9, 2012, and complained
that her daughter was still having difficulty with focus and attention despite exhibiting a
stable mood. Dr. Dupre put S.J.B. back on Metadate to help control her ADHD. (R.
405, 415). The following month, on February 2, 2012, Ms. Polis wrote a general letter
addressed “To Whom It May Concern” describing S.J.B. as “highly distractible” and
disruptive in class. Ms. Polis noted that S.J.B. bullied other children, refused to take
responsibility for her bad behavior, and craved “constant attention.” (R. 298).
In a Teacher Questionnaire completed on February 17, 2012, Ms. Polis reported
that S.J.B. did not have any problems acquiring and using information or moving about
and manipulating objects, (R. 289, 292), but she had some obvious and serious to very
serious problems in the other functional domains. For example, she would blurt out
comments or answers without waiting to be called upon and then try to shift blame onto
someone else. (R. 290). She also hit other children and said “cruel and rude” things to
them. (R. 291, 295). Ms. Polis stated that S.J.B.’s significant problem areas included
paying attention, focusing, refocusing to task, waiting to take turns, changing activities

6

without being disruptive, working without distracting others, playing cooperatively with
other children, making and keeping friends, seeking attention appropriately, following
rules, taking turns, interpreting the meaning of facial expressions, asking permission,
respecting/obeying adults in authority, handling frustration appropriately, being patient
when necessary, identifying and appropriately asserting emotional needs, and
responding appropriately to changes in her own mood. (R. 290-91, 293).
Not surprisingly, Plaintiff told Dr. Dupre on February 27, 2012 that S.J.B. was still
having behavioral difficulties at school, even on the Metadate. Dr. Dupre switched her
to Focalin, which S.J.B. took until April 2012. (R. 413, 418). Then on May 23, 2012,
S.J.B. received a four-day lunch detention for saying inappropriate things of a sexual
nature to other students. (R. 300). Plaintiff took S.J.B. back to see Dr. Dupre on July
25, 2012, explaining that since stopping the medication, S.J.B. was having increased
difficulties with attention, compliance, impulsivity and interpersonal issues. (R. 418).
On examination, S.J.B. was hyperactive with minimal attention, but everything else was
normal. (R. 416, 428). Dr. Dupre once again prescribed Focalin to help with S.J.B.’s
ADHD, (R. 418), and by August 22, 2012, her behavior was under control aside from a
continuing tendency towards rudeness. (R. 430).
On October 1, 2012, Plaintiff’s counsel submitted a note to DDS from Lisa Davis,
S.J.B.’s Second Grade teacher at her new school, Dewey Elementary. (R. 312). Ms.
Davis stated that S.J.B. often talked to peers when she should have been working
independently or following teacher lessons. She also communicated in an uncaring way
and rolled her eyes.

That said, when S.J.B. was focused, she could respond to

questions and prompts appropriately and complete her work. (R. 313).

7

On October 16, 2012, Don White, Ph.D., performed a Psychological Evaluation
of S.J.B. for DDS.

(R. 432-34).

Dr. White found that S.J.B. exhibited adequate

“Adaptive Behavioral Functioning” except in the area of “Interpersonal/Social”
interactions. She showed no impairment in “Immediate, Recent or Remote Memory
Functioning,” and adequate “Fund of Information,” “Ability to do Calculations,” and
“Ability to Analyze and Synthesize Data.”

Dr. White observed adequate abstract

thinking and fair judgment, and diagnosed ADHD. (R. 434).
A couple months later, on December 13, 2012, S.J.B. switched schools from
Dewey Elementary to Helge A. Haugan Elementary. (R. 324). She had just turned
eight years old.
4.

2013 through 2014

S.J.B.’s Second Grade teacher at Haugan, Sugey Santana, sent a handwritten
note home on January 15, 2013 advising Plaintiff that S.J.B. was not following
classroom rules, kept talking in line and interrupting the teacher, and argued with others
throughout the day.

She also “gives attitude” to both teachers and students.

Ms.

Santana asked Plaintiff to acknowledge receipt of the note. (R. 320).
Shortly thereafter, on March 20, 2013, Ms. Santana completed a Teacher
Questionnaire on S.J.B.

(R. 324-31).

Ms. Santana reported that S.J.B. had no

problems acquiring and using information, moving about and manipulating objects, or
caring for herself. (R. 325, 328-29). She did, however, have a serious problem working
without districting herself or others and taking turns in conversation, and an obvious
problem focusing long enough to finish assigned activity, changing from one activity to
another without being disruptive, completing class/homework assignments, making and

8

keeping friends, seeking attention appropriately, and respecting/obeying adults in
authority.

(R. 326-27).

Ms. Santana stressed that while S.J.B. tended to avoid

completing tasks, she was “capable of doing [them]” and finished successfully when
isolated from other students. (R. 326).
Toward the end of the school year on May 20 and 24, 2013, S.J.B. received
detention for not following her teacher’s redirection and arguing with another student,
and for admitting to hitting, grabbing and scratching a student at recess. (R. 332, 333,
336). The following school year, S.J.B. switched to Glenwood Academy, a boarding
school for at-risk children. Her behavior problems continued, and on October 10, 2013,
the Residential Supervisor, Bryan E. Warner, sent Plaintiff a report stating that S.J.B.
was working hard but having some difficulty communicating with staff and students. (R.
3). This included frequently staring at people, laughing at inappropriate times, making
inappropriate comments about other students and their family members, engaging in
minor hitting and kicking of students, and being rude and disrespectful. (Id.). Over the
next few months, S.J.B. received two suspensions and a loss of privileges due to similar
behavioral problems. (R. 5).
B.

Plaintiff’s Testimony
Plaintiff testified at the August 23, 2012 hearing that S.J.B. has trouble keeping

good relationships because she is “somewhat of a bully” with inappropriate behavior.
(R. 51). In addition to fighting with other children, she throws tantrums and struggles to
maintain focus and attention. (R. 52). When S.J.B. is on medication, it makes a “huge
difference,” allowing her to focus and concentrate better with no violent outbursts. (R.
53-54).

In fact, with Focalin, S.J.B. is “like a normal child.”

9

(R. 55).

Plaintiff

acknowledged that S.J.B. had gotten in trouble at school in May 2012 but explained that
she was not taking her medicine at that time. (R. 55). Plaintiff also noted that S.J.B.
had fun playing with a little girl at the shelter until the evening when her medication wore
off. (R. 59).
At the April 15, 2013 hearing, Plaintiff testified that S.J.B.’s grades were “very
good,” and that “[a]cademically she’s doing great.” (R. 465). S.J.B. was still taking
Focalin (dexmethylphenidate) but Plaintiff thought she needed a higher dosage because
the effects wore off “very fast.” (R. 465-66).
C.

Medical Expert Testimony
ME Hagerman testified at the August 23, 2012 hearing that S.J.B. suffers from

ADHD and an adjustment disorder with a disturbance of emotions and conduct. (R. 63).
When S.J.B. is medicated, she is no longer hyperactive and her level of inattention is
low. (R. 64-65). She also performs at grade level despite the behavioral issues, and
she has no limitation in acquiring and using information, moving about and manipulating
objects, or health and physical well-being. (R. 65, 66, 69). At the same time, ME
Hagerman opined that due to her conduct disorder, S.J.B. has marked limitation in
impulsiveness and interacting and relating with others, even when she is taking
medication. (R. 65-66, 68). When medicated, S.J.B. has less than marked limitation in
attending and completing tasks, but it becomes a marked limitation without medication.
(R. 67). Finally, ME Hagerman found that S.J.B. has a less than marked limitation in
the domain of caring for herself. (R. 69).
At the April 15, 2013 hearing, ME O’Brien testified that S.J.B. suffers only from
ADHD that does not meet or equal the listings.

10

(R. 455-56).

Though Dr. Dupre

diagnosed rule out adjustment disorder in May 2010, ME O’Brien stated it was a
“temporary short-term kind of experience while the child is getting adjusted to” being
homeless, and was non-severe given that the diagnosis never appeared again in any
subsequent medical records. (R. 466). With respect to the functional domains, ME
O’Brien first noted that no one has ever recommended that S.J.B. receive special
services despite her difficulties at school, (R. 456), and that she was never removed
from the classroom or given an IEP. (R. 458). She also stressed that S.J.B. responds
to medication. (R. 459).

ME O’Brien then testified that S.J.B. has no limitation in

acquiring and using information, manipulating objects, or caring for herself, and she has
less than marked limitation in attending and completing tasks and interacting and
relating with others.

(R. 459-60).

In ME O’Brien’s opinion, S.J.B. has no marked

limitations even when she is not taking her medication. (R. 460-61).
D.

The ALJ’s Decision
The ALJ found that S.J.B., an eight-year-old school-age child at the time of the

decision, suffers from ADHD, a severe impairment that does not meet or equal the
listings. (R. 25-26). After discussing the medical and school evidence in detail, the ALJ
also determined that S.J.B.’s ADHD is not functionally equivalent to the listings because
she does not suffer from at least two marked impairments or one extreme impairment in
the six domains of functioning. Specifically, S.J.B. has (1) no limitation in acquiring and
using information; (2) less than marked limitation in attending and completing tasks; (3)
either marked or less than marked limitation in interacting and relating with others;2 (4)

2

The ALJ’s discussion of S.J.B.’s functionality in the domain of interacting and relating
with others is a bit confusing. At one point the ALJ stated: “The claimant has marked limitation”
in that domain, but he thereafter accepted ME O’Brien’s opinion that S.J.B. has less than
marked limitation in that area. (R. 34) (emphasis in original). In her memorandum in support of

11

no limitation in moving about and manipulating objects; (5) less than marked limitation in
caring for herself; and (6) no limitation in health and physical well-being. (R. 30-37).
In reaching this conclusion, the ALJ afforded great weight to ME O’Brien’s
opinion; some weight to ME Hagerman’s opinion; some weight to the opinions from Dr.
Higdon, Dr. White, Dr. Henson and Dr. Schneider; and some weight to the assessments
from S.J.B.’s First and Second Grade teachers, Ms. Martin and Ms. Santana. (R. 29,
30). The ALJ did not give weight to Ms. Polis’s assessment to the extent it conflicted
with the reports from other teachers, the opinions of record, and Plaintiff’s own
testimony that S.J.B. gets “very good grades” and has proper academic functioning. (R.
30). As for Plaintiff’s testimony (and S.J.B.’s brief statements at the first hearing), the
ALJ found that the objective evidence did not support the claimed intensity and limiting
effect of S.J.B.’s ADHD symptoms. (R. 27).
Based on all of these findings, the ALJ concluded that S.J.B. was not disabled
within the meaning of the Act at any time between July 18, 2011 and May 2, 2013.
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

summary judgment, however, the Commissioner assumes that S.J.B. is markedly limited in that
one domain. (Doc. 21, at 1).

12

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)).
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).

13

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 well-being. 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.

A marked

limitation “interferes ‘seriously’ with the child’s ability to independently initiate, sustain, or
complete activities in the domain, and an ‘extreme’ limitation interferes ‘very seriously.’”
Buckhanon ex rel. J.H. v. Astrue, 368 Fed. Appx. 674, 679 (7th Cir. 2010).

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 h[is] 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)).

14

C.

Analysis
Plaintiff argues that the ALJ’s decision should be remanded for two reasons: (1)

the ALJ needs to consider some new and material evidence pursuant to sentence six of
42 U.S.C. § 405(g); and (2) the ALJ’s decision to deny benefits is not supported by
substantial evidence. The Court considers each argument in turn.
1.

New Evidence

Plaintiff first asks the Court to remand the case so the ALJ can consider three
new documents she has submitted pertaining to S.J.B.’s condition. The first document
consists of notes from a November 17, 2014 staffing meeting at Glenwood Academy,
which Plaintiff participated in via teleconference. According to those notes, S.J.B. was
“doing very well academically” in her Fourth Grade year, but she struggled to get along
with girls her own age and had ongoing behavior problems. (Doc. 15, at 2). The
second document is a December 9, 2014 letter from Jada Johnson, M.D., stating that
S.J.B. had been receiving services at Advocate since June 2, 2014 for her “Mood
Disorder and ADHD.” Dr. Johnson indicated that she was handling S.J.B.’s medication
monitoring (Focalin), and that Betty Laan Vander was seeing S.J.B. for individual
therapy. (Doc. 15, at 3). The final document is a February 24, 2015 letter stating that
S.J.B. was being expelled from Glenwood Academy “due to bullying and threatening
another student several times over the past couple of months,” resulting in physical
injury to that student. (Doc. 22).
Sentence six of 42 U.S.C. § 405(g) authorizes courts to remand a case to the
Commissioner if “the claimant submits ‘new and material evidence’ that, in addition to
the evidence already considered by the ALJ, makes the ALJ’s decision ‘contrary to the

15

weight of the evidence’ in the record.” Getch v. Astrue, 539 F.3d 473, 483 (7th Cir.
2008) (quoting 20 C.F.R. § 404.970(b)). Evidence is considered “material” if there is a
“reasonable probability that the ALJ would have reached a different conclusion had the
evidence been considered.” Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir. 2005).
“Medical evidence postdating the ALJ’s decision, unless it speaks to the patient’s
condition at or before the time of the administrative hearing, could not have affected the
ALJ’s decision and therefore does not meet the materiality requirement.” Getch, 539
F.3d at 484.
Here, the November 17, 2014 notes, the December 9, 2014 letter from Dr.
Johnson, and the February 24, 2015 expulsion letter all postdate the ALJ’s May 2, 2013
decision by more than a year and a half, and none addresses S.J.B.’s condition during
the time her application for benefits was under administrative review. The staffing notes
from Glenwood Academy discuss S.J.B.’s academic and behavioral functioning as of
November 2014, and set forth a future plan to move her into a new dorm, start her on
counseling services, and follow up with her mother in February 2015. (Doc. 15, at 2).
The fact that S.J.B. was having behavioral problems is certainly not new, as that has
always been the crux of Plaintiff’s request for benefits, and the ALJ discussed those
problems in detail. (R. 27-30). There is also nothing in the staffing notes that has any
bearing on S.J.B.’s functioning back in May 2013 when the ALJ rendered his decision.
Dr. Johnson’s December 2014 letter similarly fails the materiality test, as she
confirms that she did not even start treating S.J.B. until June 2, 2014, which is more
than a year after the ALJ’s decision (and more than a month after the Appeals Council
denied Plaintiff’s request for review on April 17, 2014). Under such circumstances, Dr.

16

Johnson’s opinion says nothing about S.J.B.’s condition during the administrative review
process and could not have had any effect on the ALJ’s decision. Finally, the February
2015 expulsion note expressly explains that the decision to terminate S.J.B.’s
placement at Glenwood Academy was due to behavior occurring over the prior “couple
of months,” meaning late 2014 and early 2015. (Doc. 22). Once again, this evidence
says nothing about S.J.B.’s functioning at the time of the administrative hearing or the
ALJ’s decision, and so does not meet the materiality requirement for a sentence six
remand.
The Court recognizes that S.J.B.’s new diagnosis of a Mood Disorder, combined
with her recent expulsion from boarding school, may indicate that her condition has
worsened since the ALJ’s May 2013 decision, an argument made in Plaintiff’s motion.
(Doc. 15). If so, Plaintiff’s recourse is to file a new application for benefits, not seek to
revisit the current application. Getch, 539 F.3d at 484 (“If Mr. Getch has developed
additional impairments, or his impairments have worsened, since his first application for
benefits, he may submit a new application.”). See also McFadden v. Astrue, 465 Fed.
Appx. 557, 560 (7th Cir. 2012) (evidence which shows that an impairment has
worsened “is not material because it does not describe [the plaintiff’s] condition in the
period before the ALJ rendered her decision.”).
To summarize, the new documents Plaintiff submitted to the Court do not have
any bearing on S.J.B.’s condition at or before the time of the administrative hearing.
Getch, 539 F.3d at 484. As a result, they are not material for purposes of a sentence
six remand, and Plaintiff’s request for a ruling in her favor on that basis must be denied.

17

2.

Substantial Evidence Supports the ALJ’s Decision

Plaintiff also objects that the ALJ erred in finding that S.J.B.’s ADHD is not a
disabling impairment. Plaintiff does not point to any particular line of evidence the ALJ
failed to consider when making that determination, or challenge any specific aspect of
the decision. Instead, she states without any supporting authority that S.J.B. may have
some sort of unidentified “degenerative illness” that “can affect [her] psychologically,”
and claims that “after extreme observation and after carefully examining the ALJ
decision,” it was “not supported by substantial nor further evidence per SSA.” (Doc. 15).
Viewing the record as a whole, the Court is satisfied that the ALJ’s decision is in
fact supported by substantial evidence and there is no justification for remanding the
case.

As a preliminary matter, ME Hagerman, ME O’Brien, Dr. Henson and Dr.

Schneider all agreed that S.J.B.’s ADHD does not meet or equal one of the listings. (R.
66, 366, 388, 455-56).

Absent any evidence to the contrary, the ALJ reasonably

accepted these opinions and proceeded to analyze S.J.B.’s functioning in each domain.
a.

Acquiring and Using Information

Looking first to acquiring and using information, this domain “refers to how well a
child acquires or learns information and how well [s]he uses the information [s]he has
learned.” Hopgood ex rel. L.G., 578 F.3d at 699. A school-age child between the ages
of 6 and 12 (like S.J.B.) “should be able to learn to read, write, and do math, and
discuss history and science.” Coleman ex rel. J.C. v. Colvin, 981 F. Supp. 2d 749, 759
(N.D. Ill. 2013) (citing 20 C.F.R. § 416.926a(g)). She should also be able to “produce
oral and written projects, solve math problems, and take tests,” as well as “apply those
skills to daily living situations at home and in the community.” Id.

18

In finding that S.J.B. has no limitation in this domain, the ALJ noted that Plaintiff
herself testified that S.J.B. gets “very good” grades and is “doing great” academically, a
sentiment confirmed by S.J.B.’s teachers (Ms. Martin, Ms. Polis and Ms. Santana). (R.
31, 238, 289, 465). The ALJ also observed that S.J.B. has never been recommended
for special education classes or an IEP, and that both ME Hagerman and ME O’Brien
opined that she has no limitation when it comes to acquiring and using information. (R.
31, 66, 459). The Court finds no error in this determination.
b.

Attending and Completing Tasks

The domain of attending and completing tasks considers “how well [school-age
children] are able to focus and maintain [their] attention and how well [they] begin, carry
through, and finish activities, including the pace at which [they] perform activities and
the ease with which [they] change them.” Coleman ex rel. J.C., 981 F. Supp. 2d at 761
(quoting 20 C.F.R. § 416.926a(h)). A school-age child “should be able to focus [her]
attention in a variety of situations in order to follow directions, remember and organize
[her] school materials, and complete classroom and homework assignments . . . [and]
concentrate on details and not make careless mistakes in [her] work . . .” Id. (quoting
20 C.F.R. § 416.926a(h)(2)(iv)).
The ALJ acknowledged that S.J.B.’s ADHD causes documented symptoms of
inattention and hyperactivity, but also found it significant that her medical records
demonstrate that she is not hyperactive when properly medicated and compliant. (R.
32-33). See, e.g., Skinner, 478 F.3d at 845 (claimant was not disabled where her
symptoms were “largely controlled with proper medication and treatment.”). In addition,
as noted earlier, S.J.B. has “successfully progressed through school in regular

19

education courses, has never required an IEP, and has obtained ‘very good grades’
according to her mother” despite the attention problems. (R. 33). S.J.B.’s First and
Second Grade teachers (again, Ms. Martin, Ms. Polis and Ms. Santana) all agreed that
S.J.B. has only slight to obvious limitations in attending and completing tasks, which the
ALJ viewed as consistent with the opinions from Dr. Henson, Dr. Schneider, ME
Hagerman and ME O’Brien that S.J.B. has a less than marked limitation in this domain.
(R. 33, 67, 238, 289, 313, 325, 368, 390, 459). On the record presented, the ALJ’s
finding is supported by substantial evidence.
c.

Interacting and Relating with Others

The next domain, interacting and relating with others, is defined as “how well the
claimant initiates and sustains emotional connections with others, develops and uses
the language of h[er] community, cooperates with others, complies with rules, responds
to criticism, and respects and takes care of the possessions of others.” M.W. ex rel.
Terry v. Astrue, No. 10 C 7813, 2012 WL 1532386, at *8 (N.D. Ill. Apr. 30, 2012) (citing
20 C.F.R. § 416.926(a)(i)). A school-age child like S.J.B. “should be developing more
lasting friendships with children who are of the same age”; “should begin to understand
how to work in groups to create projects and solve problems”; and “should be able to
talk to people of all ages, to share ideas, tell stories, and to speak in a manner that both
familiar and unfamiliar listeners can readily understand.” Id.
Most of the physicians of record who considered S.J.B.’s functioning in this
domain, including Dr. Henson, Dr. Schneider, and ME O’Brien, concluded that she has
a less than marked limitation. (R. 34, 368, 390, 459-60). There is some support for this
viewpoint. Despite S.J.B.’s problems with “classroom interruptions, talking in line, and

20

arguing or bullying others,” she was never diagnosed with a behavior disorder or
recommended for special education services.3

(R. 34).

In addition, mental status

exams with Dr. Dupre, Dr. Higdon and Dr. White, consistently showed that S.J.B. was
pleasant, cooperative, friendly, and interpersonally connected with good eye contact.
(R. 34, 344, 349, 356, 364, 379-80, 403, 405, 416, 430, 432-33).
At the same time, ME Hagerman testified that S.J.B. has a marked limitation in
interacting and relating with others, even when she is on medication. (R. 68). The ALJ
acknowledged this testimony but noted that ME Hagerman did not review additional
relevant evidence submitted after the first hearing, and concluded that his opinion was
inconsistent with S.J.B.’s medical evaluations and school performance records. (R. 29).
“Faced with competing opinions, the ALJ had to decide which opinion to credit,” and the
Court “cannot say, as a matter of law, that the ALJ made the wrong choice here.”
Liskowitz v. Astrue, 559 F.3d 736, 742 (7th Cir. 2009).
This does not end the Court’s inquiry, however, because Defendant has
presumed in her memorandum that S.J.B. is markedly limited in this domain. (Doc. 21,
at 1). Assuming for the sake of argument that the ALJ erred in failing to make his
finding clear on this issue, and that S.J.B. has a marked limitation in interacting and
relating with others, the Court must determine whether that error requires a remand. It
is well-established that errors of articulation are “subject to harmless-error review, and
we will not remand a case to the ALJ for further explanation if we can predict with great

3

As noted earlier, ME Hagerman testified that S.J.B. was diagnosed with an adjustment
disorder, (R. 63), but ME O’Brien pointed out that Dr. Dupre actually diagnosed only “rule out
adjustment disorder” in May 2010, after which time neither she nor any other physician of record
made any further reference to that condition. (R. 466). The ALJ reasonably adopted ME
O’Brien’s opinion that any adjustment disorder was at best a temporary and non-severe
impairment. (R. 25).

21

confidence that the result on remand would be the same.” Schomas v. Colvin, 732 F.3d
702, 707 (7th Cir. 2013).

Here, any alleged error on the part of the ALJ must be

deemed harmless unless S.J.B. also has a marked limitation in at least one other
domain. Ferguson ex rel. A.F. v. Astrue, No. 11 C 2248, 2013 WL 788089, at *12 (N.D.
Ill. Mar. 1, 2013) (a child functionally equals a listing and qualifies for disability benefits if
she has a marked limitation in at least two of the six domains).
The Court has already determined that the ALJ acted reasonably in finding that
S.J.B. does not have a marked limitation in acquiring and using information and
attending and completing tasks. As discussed below, moreover, substantial evidence
also supports the ALJ’s conclusion that S.J.B. has less than marked or no limitation in
the remaining three domains of functioning.

Under such circumstances, a remand

“would be a waste of time and resources for both the Commissioner and the claimant,”
as the end result would be the same. McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir.
2011).
d.

Moving About and Manipulating Objects

The domain of moving about and manipulating objects considers “how well a
child is able to move h[er] body from one place to another and how a child moves and
manipulates objects.” M.W. ex rel. Terry, 2012 WL 1532386, at *9 (citing 20 C.F.R. §
416.926a(j)). A school-age child like S.J.B. should be able to “do things like use many
kitchen and household tools independently, use scissors, and write.” Id.
The record contains no evidence suggesting that S.J.B. has any difficulties in this
area. S.J.B.’s teachers never documented any problems with her mobility or her ability
to manipulate objects, Plaintiff did not allege any such deficiencies, and ME Hagerman,

22

ME O’Brien, Dr. Henson and Dr. Schneider all opined that S.J.B. has no limitation in this
domain. (R. 35, 241, 292, 328). On the record presented, the ALJ’s finding of no
limitation in moving about and manipulating objects is supported by substantial
evidence.
e.

Caring for Yourself

The Regulations explain that the domain of caring for yourself reflects “how well
a child maintains a healthy emotional and physical state, including how well a child
satisfies h[er] physical and emotional wants and needs in appropriate ways.” M.W. ex
rel. Terry, 2012 WL 1532386, at *9 (citing 20 C.F.R. 416.926a(k)). School-age children
“should be independent in most day-to-day activities (e.g., dressing yourself, bathing
yourself) . . . and should begin to develop understanding of what is right and wrong, and
what is acceptable and unacceptable behavior.” 20 C.F.R. § 416.926a(k)(2)(iv). They
should also “begin to demonstrate consistent control over [their] behavior, and . . . be
able to avoid behaviors that are unsafe or otherwise not good for [them].” Id.
The ALJ found that S.J.B. has less than marked limitation in this domain, citing
first to educational records and teacher opinions demonstrating that she “is generally
independent at school” and has no problem caring for her needs. (R. 36, 242, 329).
One teacher, Ms. Polis, did document some serious problems handling frustration
appropriately, being patient when necessary, identifying and appropriately asserting
emotional needs, and responding appropriately to changes in own mood (e.g., calming
self).

(R. 293).

The ALJ did not assign Ms. Polis’s opinion any weight, however,

explaining in accordance with SSR 06-03p that it conflicted not only with the records
from the other teachers, who found no limitation in this area, but also with opinions from

23

the medical experts. (R. 30). In that regard, Dr. Henson, Dr. Schneider and ME O’Brien
found that S.J.B. has no limitation in this domain, and ME Hagerman agreed that any
such problems are at most less than marked. (R. 36, 69, 369, 391, 460).
Viewing the record as a whole, substantial evidence supports the ALJ’s finding
that S.J.B. has less than marked limitation in caring for herself.
f.

Health and Physical Well-Being

The final domain, health and physical well-being, considers “the cumulative
physical effects of physical or mental impairments and their associated treatments or
therapies on [a child’s] functioning.” 20 C.F.R. § 416.926a(l). All of the physicians of
record who considered S.J.B.’s functioning in this domain, including Dr. Henson, Dr.
Schneider and ME Hagerman, agreed that she has no limitation. (R. 37, 69, 369, 391).
The ALJ acknowledged that S.J.B. takes medication for her ADHD but also observed
that there is no evidence that it causes any significant side effects. (R. 37). The Court
finds no error in this determination.
g.

Summary

The ALJ reasonably found that S.J.B. does not have a marked impairment in two
domains of functioning, or an extreme impairment in one domain. His decision to deny
benefits is supported by substantial evidence, and Plaintiff’s request for remand on this
basis is denied.
CONCLUSION
For the reasons stated above, Plaintiff’s motion for summary judgment is denied,
as is her motion to transfer the case to Pennsylvania [Doc. 23]. Defendant’s motion for

24

summary judgment [Doc. 20] is granted. The Clerk is directed to enter judgment in
favor of Defendant.
ENTER:

Dated: July 29, 2015

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

25