Finley v. Colvin

Filing 31

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 5/31/2017. Mailed notice (ao,)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICIA FINLEY, ex rel. A.G.
a minor,

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Plaintiff,
v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,
Defendant.

No. 15 C 6818
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Patricia Finley brings this action on behalf of A.G., a minor, pursuant to 42 U.S.C. §
405(g) for judicial review of the Social Security Administration Commissioner’s decision
denying A.G.’s application for benefits. For the reasons set forth below, the Court reverses the
Commissioner’s decision.

Background
Plaintiff, on behalf of A.G., applied for supplemental security income on March 22, 2012,
alleging a disability onset date of March 22, 2011. (R. 133.) The application was initially
denied on July 16, 2012, and again after reconsideration on November 9, 2012. (R. 83-84.)
Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”), which was
held on December 10, 2013. (See R. 47-82.)

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On January 23, 2017, Nancy A. Berryhill succeeded Carolyn W. Colvin as Acting Commissioner of Social
Security. See https://www.ssa.gov/agency/commissioner.html (last visited May 31, 2017). Accordingly, the Court
substitutes Berryhill for Colvin pursuant to Federal Rule of Civil Procedure 25(d).

On January 29, 2014, the ALJ denied the application. (R. 21-42.) The ALJ used the
three-part, sequential test for determining whether a child is disabled, considering: (1) whether
A.G. had performed any substantial gainful activity during the period for which she claims
disability; (2) whether she has a severe impairment or combination of impairments; and (3)
whether her impairment meets, medically equals or functionally equals a listed impairment. (R.
22); see 20 C.F.R. § 416.924(b)-(d). In determining whether an impairment functionally equals a
listing, the ALJ must consider the child’s functioning in six domains: (1) “[a]cquiring and using
information”; (2) “[a]ttending and completing tasks”; (3) “[i]nteracting and relating with others”;
(4) “[m]oving about and manipulating objects”; (5) “[c]aring for [her]self”; and (6) “[h]ealth and
physical well-being.”

20 C.F.R. § 416.926a(g)-(l). An impairment or combination of

impairments functionally equals a listing if the child has “marked” limitations in two of the
domains or an “extreme” limitation in one of the domains. 20 C.F.R. § 416.926a(d). A
“‘marked’ limitation is one that is “‘more than moderate’ but ‘less than extreme.’” 20 C.F.R. §
416.926a(e)(2)(i).

A child has a “marked” limitation when her “impairment(s) interferes

seriously with [her] ability to independently initiate, sustain, or complete activities.” Id. An
“extreme” limitation is the “rating . . . give[n] to the worst limitations,” though it does not
“necessarily [require] . . . a total lack or loss of ability to function.”

20 C.F.R. §

416.926a(e)(3)(i).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the date of her application. (R. 24.) At step two, the ALJ found that plaintiff has the
severe impairments of “learning disability, major depressive disorder, attention deficit
hyperactivity disorder, and intermittent explosive disorder.” (Id.) At step three, the ALJ found
that plaintiff does not have an impairment or combination of impairments that meets, medically

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equals, or functionally equals the severity of a listed impairment, and thus is not disabled. (R.
25-26, 41.)

Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is
generous, it is not entirely uncritical,” and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Plaintiff argues that the Appeals Council erred in failing to remand the case to the ALJ
after plaintiff submitted new, material evidence – medical records from A.G.’s psychiatrist, Dr.
Pedemonte, dated July 30, 2013 and April 21, 2014. See 20 C.F.R. 404.970(b) (“If new and
material evidence is submitted, the Appeals Council shall consider the additional evidence only
where it relates to the period on or before the date of the administrative law judge hearing
decision. The Appeals Council shall evaluate the entire record including the new and material
evidence submitted if it relates to the period on or before the date of the administrative law judge
hearing decision. It will then review the case if it finds that the administrative law judge’s action,
findings, or conclusion is contrary to the weight of the evidence currently of record.”). As the
Seventh Circuit has explained, however, the Court’s ability to review the Appeals Council’s
decision “depends on the grounds on which the Council declined to grant plenary review.” Stepp
v. Colvin, 795 F.3d 711, 722 (7th Cir. 2015). If the Council determined that the evidence
plaintiff submitted was not “new and material” within the meaning of regulation, the Court has

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“jurisdiction to review that conclusion for legal error.” Id. If the Appeals Council found that the
evidence was new and material but denied review of the ALJ’s decision because the
supplemented record did not show that the ALJ’s decision was contrary to the weight of the
evidence, “the Council’s decision not to engage in plenary review is discretionary and
unreviewable.” Id. (quotation omitted).
In relevant part, the Appeals Council’s decision states:
In looking at your case, we considered the reasons you disagree with the
decision and the additional evidence [from Dr. Pedemonte].
We considered whether the [ALJ’s] action, findings, or conclusion is
contrary to the weight of the evidence currently of record.
We found that this information does not provide a basis for changing the
[ALJ’s] decision.
(R. 2.)

Defendant contends this language shows that the Appeals Council deemed the

supplemental evidence new and material but not a basis for changing the ALJ’s decision, i.e.,
that the Council’s decision is unreviewable.

The Seventh Circuit, however, rejected this

argument in Stepp:
[T]he Commissioner makes much of the fact that Stepp’s denial notice
states that the Council “considered whether the [ALJ’s] action, findings, or
conclusion is contrary to the weight of evidence of record.” The Commissioner
insists that this language . . . makes clear that the Appeals Council found Stepp’s
newly submitted evidence to be qualifying and proceeded to evaluate whether it
was sufficient to require de novo review of the ALJ’s unfavorable decision. We
disagree. To us, this boilerplate language is little more informative than the
similarly standardized language employed by the Council in Farrell [v. Astrue,
692 F.3d 767 (7th Cir. 2012)], which explained that the “information [submitted
to the Appeals Council] d[id] not provide a basis for changing the [ALJ]’s
decision.” In Farrell, we rejected the contention that this language was
sufficiently specific to confirm that the Council had accepted and reviewed the
newly submitted evidence, and we likewise reject the Commissioner’s argument
here.

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795 F.3d at 724-25 (7th Cir. 2015) (alterations in original). In keeping with Stepp, the Court
concludes that the Appeals Council’s decision does not establish that the Council substantively
considered the additional evidence and determined that it did not warrant reversal of the ALJ’s
decision, i.e., that the decision is unreviewable. Thus, the Court assumes that the Appeals
Council found that the additional evidence was not new and material. This Court is thus tasked
with determining whether that finding is erroneous.
Evidence is “new,” within the meaning of the regulations, if it was “not in existence or
available to the claimant at the time of the administrative proceeding” and “material” “if it
creates a reasonable probability that the Commissioner would have reached a different
conclusion had the evidence been considered.” Id. at 725 (quotations omitted). Moreover, “if
new and material evidence is submitted, the Appeals Council shall consider the additional
evidence only where it relates to the period on or before the date of the administrative law judge
hearing decision.” 20 C.F.R. § 416.1470(b).
Dr. Pedemonte’s July 2013 record, which existed at the time of the administrative
hearing, is not new.

And, even if it were, it is not material because it does not contain

information that is different from the other 2013 records of Dr. Pedemonte that the ALJ had
when he ruled. (Compare R. 489-503, with R. 335-60, 449-63.) Further, the Appeals Council
had no basis for considering Dr. Pedemonte’s April 2014 record because it was generated three
months after the ALJ issued his decision and does not purport to document A.G.’s condition in
the pre-decision period. Therefore, the Appeals Council’s refusal to consider the supplemental
evidence plaintiff submitted was not erroneous.
Alternatively, plaintiff argues that the ALJ violated his duty to fully develop the record
by failing to obtain the additional records from Dr. Pedemonte and an expert’s opinion of A.G.’s

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condition in light of her 2013 medical records. See Thompson v. Sullivan, 933 F.2d 581, 585
(7th Cir. 1991) (“[W]here the disability benefits claimant is unassisted by counsel, the ALJ has a
duty scrupulously and conscientiously to probe into, inquire of, and explore for all the relevant
facts.”) (alterations, quotation, and citations omitted); (R. at 132 (plaintiff’s waiver of
representation).) As discussed above, however, the additional records from Dr. Pedemonte were
immaterial, thus the ALJ’s failure to obtain them was harmless. So was the ALJ’s failure to
secure a second expert opinion. A.G.’s 2013 records came from an expert, Dr. Pedemonte, and it
was the ALJ’s job to evaluate them along with the rest of the medical evidence. See 20 C.F.R. §
416.920b(b). The ALJ was only required to seek another opinion if he could not, based on the
evidence before him, determine whether A.G. was disabled. See 20 C.F.R. § 416.920b(c).
Because that was not the case here, the ALJ’s failure to secure another agency opinion was not
error.
Finally, plaintiff further argues that the ALJ’s determination that A.G. is only markedly
limited in one domain, the acquisition and use of information, is not supported by substantial
evidence. Specifically, plaintiff says the record shows that A.G. is also markedly limited in the
domain of attending and completing tasks. In this domain, the ALJ considers “how well [the
child is] able to focus and maintain . . . attention, and how well [she] begin[s], carr[ies] through,
and finish[es] [her] activities, including the pace at which [she] perform[s] activities and the ease
with which [she] change[s] them.” 20 C.F.R. § 416.926a(h). With respect to this domain, the
ALJ said:
Although the claimant did not complete her homework or chores most of
the time, the claimant’s mother reported that she was able to keep busy on her
own. The Teacher Questionnaires indicated that the claimant has some
limitations in this domain. For example, she sometimes needed to be redirected.
However, the teachers did not indicate that the claimant ever had a very serious
problem in this domain. The claimant’s 2012 IEPs [individual education
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programs] indicated that she transitioned well from class to class. Although the
claimant inconsistently completed homework and classwork, her attendance was
good. The claimant could recall three digits forward and four in reverse.
The claimant’s most recent IEP shows that she was able to transport
herself via public transportation with no assistance. Although the claimant wrote
illegibly at times, she worked well independently and worked very hard to
complete her assignments. She had difficulty keeping up with the pace of her
peers, which supports the less than marked limitation. The school staff wrote that
the claimant needed reminding to stay on task because she liked to chat with her
neighbors. The school staff further wrote that the claimant would be a great
candidate for student council because she would “help those in need.” The
reports from the school and the Teacher Questionnaires support a less than
marked finding in this domain. . . .
(R. 35-36) (citations omitted).
In reaching this conclusion, however, the ALJ failed to address contrary evidence in the
record, including the bulk of the December 11, 2013 teacher questionnaire completed by A.G.’s
special education teacher, Linda Ward. Ward gave A.G. a rating of 4 (on a scale where 1 means
“no problem,” 2 means “a slight problem,” 3 means “an obvious problem,” 4 means “a serious
problem,” and 5 means “a very serious problem”) in seven of the thirteen activities in the domain
of attending and completing tasks, including: carrying out multi-step instructions, waiting to
take turns, changing activities without being disruptive, completing assignments and doing so
without careless mistakes, working without distracting herself or others, and working at a
reasonable pace. (See R. 196.) Further, Ward gave A.G. a rating of 3, meaning she had an
“obvious problem,” in the domain activities of paying attention, focusing, refocusing when
necessary, and organizing school materials, and remarked that A.G. “needs to be redirected
several times during each class.” (Id.) The ALJ also did not discuss notations in A.G.’s
December 11, 2013 IEP that A.G. “continues to write illegibl[y],” “receives low scores because
of her lack of caring,” and “continues to have difficulties working independently.” (R. 466,
476.) While an ALJ is not required to “mention every piece of . . . evidence in [his] opinion . . . ,
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[]he cannot ignore a line of evidence contrary to [his] conclusion.” Thomas v. Colvin, 745 F.3d
802, 806 (7th Cir. 2014). Because that is what the ALJ appears to have done, the case must be
remanded.2
Conclusion
For the reasons set forth above, the Court grants plaintiff’s motion for summary judgment
[16], denies the Commissioner’s motion for summary judgment [23], reverses the
Commissioner’s decision, and remands this case for further proceedings consistent with this
Memorandum Opinion and Order.
SO ORDERED.

ENTERED: May 31, 2017

_________________________________
M. David Weisman
United States Magistrate Judge

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Plaintiff also argues that the ALJ improperly concluded that A.G. was not markedly limited in the domains of
interacting and relating to others and caring for herself. The Court does not address these arguments because the
flawed finding on the domain of attending and completing tasks by itself warrants a remand.
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