Simmons, ex rel. L.H., a minor v. Colvin
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 3/2/2018. Mailed notice. (dm, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TAWANA SIMMONS, ex rel., L.H.,
a minor,
Plaintiff,
No. 17 C 00065
v.
NANCY A. BERRYHILL, 1 Acting
Commissioner of Social Security,
Magistrate Judge Mary M. Rowland
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Tawana Simmons filed this action on behalf of her son, L.H., seeking
reversal of the final decision of the Commissioner of Social Security denying her
application for Supplemental Security Income (SSI) under Title XVI of the Social
Security Act (Act). 42 U.S.C. §§ 405(g), 1381 et seq. The parties have consented to
the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. §
636(c), and Plaintiff has filed a request to reverse the ALJ’s decision with an award
of benefits or in the alternative, reversal and remand for additional proceedings.
For the reasons stated below, the case is remanded for further proceedings
consistent with this Opinion.
I. PROCEDURAL HISTORY
On July 18, 2013, Tawana Simmons filed an application for SSI on behalf of her
minor child, L.H., who was born on November 3, 2005, alleging that he became
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to
Federal Rule of Civil Procedure 25(d).
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disabled on January 1, 2012. (R. at 21, 146). The application was denied initially
and upon reconsideration, after which Ms. Simmons filed a timely request for a
hearing. (Id. at 21, 73–81, 83–92, 104–106). On March 26, 2015, L.H. and Ms.
Simmons, represented by counsel, testified at a hearing before an Administrative
Law Judge (ALJ). (Id. at 21, 42–72).
On July 17, 2015, the ALJ denied L.H.’s request for benefits. (R. at 18–37).
Applying the three-step sequential evaluation process, the ALJ found at step one
that L.H. had not engaged in substantial gainful activity since July 18, 2013, his
application date. (Id. at 24). At step two, the ALJ found that L.H. had the following
severe impairments: cognitive deficits, articulation deficits, and asthma. (Id.) The
ALJ also found that L.H.’s eczema was a non-severe impairment. (Id.) At step three,
the ALJ determined that L.H. does not have an impairment or combination of
impairments that meet or medically equal the severity of any of the Listings. (Id. at
24–26). Specifically, the ALJ concluded that L.H. does not meet or medically equal
Listing 103.03, 102.10, 112.02, or 112.05. (Id. at 24–26). The ALJ then determined
that L.H. does not have an impairment or combination of impairments that
functionally equal the severity of any of the Listings. (Id. at 26–27). In making this
determination, the ALJ found that L.H. had a marked limitation in acquiring and
using information but less than marked in the five other areas, discussed further
below. (Id. at 32).
The Appeals Council denied L.H.’s request for review on November 10, 2016. (R.
at 1–6). L.H. now seeks judicial review of the ALJ’s decision, which stands as the
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final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561–62 (7th Cir.
2009).
II. STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is authorized by § 405(g) of
the SSA. In reviewing this decision, the Court may not engage in its own analysis of
whether the plaintiff is severely impaired as defined by the Social Security
Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it
“reweigh evidence, resolve conflicts in the record, decide questions of credibility, or,
in general, substitute [its] own judgment for that of the Commissioner.” Id. The
Court’s task is “limited to determining whether the ALJ’s factual findings are
supported by substantial evidence.” Id. (citing § 405(g)). Evidence is considered
substantial “if a reasonable person would accept it as adequate to support a
conclusion.” Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v.
Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014). “Substantial evidence must be more
than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d
836, 841 (7th Cir. 2007). The ALJ must “explain his analysis of the evidence with
enough detail and clarity to permit meaningful appellate review.” Briscoe ex rel.
Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).
Although this Court accords great deference to the ALJ’s determination, it “must
do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297 F.3d
589, 593 (7th Cir. 2002) (citation omitted). “[T]he ALJ must identify the relevant
evidence and build a ‘logical bridge’ between that evidence and the ultimate
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determination.” Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014). Where the
Commissioner’s decision “lacks evidentiary support or is so poorly articulated as to
prevent meaningful review, the case must be remanded.” Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002).
“A child qualifies as disabled and therefore may be eligible for SSI if he has a
‘medically determinable physical or mental impairment, which results in marked
and severe functional limitations’ and the impairment ‘has lasted or can be expected
to last for a continuous period of not less than 12 months.’” Hopgood ex rel. L.G. v.
Astrue, 578 F.3d 696, 699 (7th Cir. 2009) (quoting 42 U.S.C. § 1382c(a)(3)(C)(i)). To
decide whether a child meets this definition, the Social Security Administration
(SSA) employs a three-step analysis. 20 C.F.R. § 416.924(a). First, if the child is
engaged in substantial gainful activity, his or her claim is denied. Id. Second, if the
child does not have a medically severe impairment or combination of impairments,
then his or her claim is denied. Id. Finally, the child’s impairments must meet, or be
functionally equivalent, to any of the Listings contained in 20 CFR pt. 404, subpt. P,
app. 1. Id. To find an impairment functionally equivalent to one in the Listings, an
ALJ must analyze its severity in six age-appropriate categories: “(i) acquiring and
using information; (ii) attending and completing tasks; (iii) interacting and relating
with others; (iv) moving about and manipulating objects; (v) caring for yourself; and
(vi) health and physical well-being.” Id. § 416.926a(b)(1). To functionally equal the
Listings, the ALJ must find an “extreme” limitation in one category or a “marked”
limitation in two categories. An “extreme” limitation occurs when the impairment
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interferes very seriously with the child’s ability to independently initiate, sustain or
complete activities. Id. § 416.926a(e)(3)(i). A “marked” limitation is one which
interferes seriously with the child’s ability to independently initiate, sustain, or
complete activities. Id. § 416.926a(e)(2)(i).
III. DISCUSSION
L.H. raises three arguments in support of his request for reversal of the ALJ’s
determination that he is not disabled: (1) the ALJ’s conclusion that his impairments
did not meet Listing 112.05(B) was not supported by substantial evidence; (2) the
ALJ’s analysis of whether his impairments functionally equaled the severity of a
listing was flawed; and (3) the ALJ failed to properly assess the credibility of L.H.
and Ms. Simmons. (Dkt. 15). After reviewing the record and the parties’ briefs, the
Court is persuaded by the second argument. The ALJ’s reasons for finding that L.H.
had less than marked limitations in attending and completing tasks were not
supported by substantial evidence and did not build a logical bridge between the
evidence and her conclusion. See Hopgood ex rel. L.G. 578 F.3d at 697 (remanding
where the ALJ “made conclusory statements that contradicted the evidence
presented and failed to address portions of medical and school records that were
favorable to [the child].”); see also 20 C.F.R. § § 416.926a(e)(3) (a “marked”
limitation in two categories would amount to a finding of functional equivalence). 2
Because the Court is remanding on this issue, it need not address Plaintiff’s other
arguments.
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A. The ALJ’s Domain Finding in Attending and Completing Tasks
The attending and completing tasks domain considers “how well you are able to
focus and maintain your attention, and how well you begin, carry through, and
finish your activities, including the pace at which you perform activities and the
ease with which you change them.” 20 C.F.R. § 416.926a(h). Attention involves
regulating levels of alertness and initiating and maintaining concentration; the
ability to filter out distractions and focus on an activity or task at a consistent level
of performance; focusing long enough to initiate and complete an activity or task,
and changing focus once it is completed; and if you lose or change focus in the
middle of a task, you are able to return to the task without other people having to
remind you frequently to finish it. Id. § 416.926a(h)(1)(i). The Regulations provide
examples of limited functioning in attending and completing tasks, including being
easily startled, distracted, or overreactive; repeatedly becoming sidetracked from
activities or frequently interrupting others; being easily frustrated and giving up on
tasks; and requiring extra supervision to stay engaged in an activity. 20 C.F.R. §
416.926a(h)(3).
In this case, the ALJ did not sufficiently explain why she found that L.H. was
not markedly limited in attending and completing tasks in light of the evidence. See
Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012) (“We have repeatedly held that
an ALJ must provide a logical bridge between the evidence in the record and her
conclusion.”); Giles ex rel. Giles v. Astrue, 483 F.3d 483, 488 (7th Cir. 2007) (“[I]t is
unclear what evidence the ALJ relied upon in finding that [the child] was not
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markedly limited in this domain [of attending and completing tasks]. We require an
explanation of why strong evidence favorable to the plaintiff is overcome by the
evidence on which an ALJ relies.”).
In discussing this domain, the ALJ relied on a September 19, 2013 Teacher
Questionnaire completed by his teacher and school psychologist (hereafter, “2013
Teacher Questionnaire”), a March 28, 2015 Teacher Questionnaire completed by his
Special Education Teacher (hereafter, “2015 Teacher Questionnaire”), L.H.’s first
and third grade Individualized Education Program (“IEP”) reports, and the ALJ’s
observation that L.H. could focus on television programs and an electronic tablet.
(R. at 30–31).
1. The Teacher Questionnaires
The ALJ acknowledged some of L.H.’s limitations reported in the 2013 and 2015
Teacher Questionnaires. But the ALJ did not discuss: (1) how evidence favorable to
L.H. in those questionnaires was overcome by other evidence; (2) reports of L.H.’s
limitations and regression on a longitudinal basis; or (3) the potential overlap
between L.H.’s limitations in attending and completing tasks and in other domains.
Citing the 2015 Teacher Questionnaire, the ALJ acknowledged that L.H. had
some obvious problems in attending and completing tasks and a serious problem in
organizing his own things and school materials. (R. at 31, 286). The ALJ also noted
the teacher’s report that L.H. “needs frequent redirection to stay on task, and had a
hard time maintaining focus on a task, and instead enjoyed talking to his
classmates.” (Id.). The record further reflects L.H.’s problems with (1) organization,
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(2) focusing long enough to finish an assigned activity or task, (3) carrying out
multi-step instructions, (4) working without distracting self or others, and (5)
working at a reasonable pace/finishing on time. (See id. at 286). Despite all of these
findings, the ALJ did not sufficiently explain how she reached the conclusion that
L.H. was not markedly limited in this domain. See Hopgood ex rel. L.G., 578 F.3d at
700 (finding ALJ’s analysis deficient where he “failed to explain why he did not
credit portions of the record that were favorable to L.G., including the teachers’
reports that found L.G. had serious or obvious problems in this domain.”).
The ALJ also failed to address L.H.’s limitations in attending and completing
tasks on a longitudinal basis. See Taylor ex rel. T.L. v. Colvin, No. 15 CV 3176, 2016
U.S. Dist. LEXIS 157477, at *35 (N.D. Ill. Nov. 14, 2016) (“An ALJ is obligated to
consider a child’s limitations on a longitudinal basis and not to decide the issue
based on an isolated time frame within the disability period.”) (citing SSR 09-2p,
2009 SSR LEXIS 2). A comparison of the 2013 and 2015 Teacher Questionnaires
reflects more severe limitations in attending and completing tasks in 2015 as
compared to 2013. Compare R. at 223 (no obvious or serious problems in 2013) to id.
at 286 (one serious problem and four obvious problems in 2015). L.H.’s IEP in 2015
also specifically stated that L.H. suffered from “severe regression on his IEP goals
and objectives and requires an unreasonably long period of time to relearn
previously learned skills.” (Id. at 265).
The ALJ also gave no consideration to the potential overlap between L.H.’s
limitations in attending and completing tasks and in acquiring and using
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information, particularly since the ALJ found L.H. to be markedly limited in
acquiring and using information. Under the Social Security Rulings, a restriction in
one area of the six functional domains can affect the child’s functioning in other
areas. See, e.g., SSR 09-3p (stating that a child with restrictions in the ability to
acquire and use information “may also have limitations in other domains”).
“[M]ental impairments that affect a child’s ability to learn may also affect a child’s
ability to attend to or complete tasks.” Id. Addressing the attending and completing
tasks domain, Social Security Ruling 09-4p states: “Rating the limitations caused by
a child’s impairment(s) in each and every domain that it affects is not ‘doubleweighting’ of either the impairment(s) or its effects. Rather, it recognizes the
particular effects of the child’s impairment(s) in all domains involved in the child’s
limited activities.”
The ALJ overlooked several statements in the teacher questionnaires: the ALJ
acknowledged the report in 2013 that L.H. had numerous very serious problems in
this area and that L.H. “needs one-to-one assistance.” (R. at 29). The entirety of this
teacher statement, which was not quoted in full by the ALJ, stated: “[L.H.] needs 1to-1 assistance to complete any grade-level task. He would not be successful working
independently.” (Id. at 226) (emphasis added). The ALJ did not discuss this
observation with respect to L.H.’s limitations in attending and completing tasks.
Instead, the ALJ focused on another note that L.H.’s struggles were “due in no part
to his lack of focus or effort.” (R. at 31, 223).
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The 2015 Teacher Questionnaire noted that L.H. needs cues and repetition if
given oral directions. (Id. at 285). Under the interacting and relating with others
domain, the teacher reported that when L.H. “does not follow directions….he will
become very defensive and cannot accept consequences for his actions…During
class, [L.H.] is very impulsive and will consistently call our answers instead of
raising his hands.” (Id. at 287). These are of the type of observations noted to be
indicators of limited functioning in attending and completing tasks. See SSR 09-4p
(“Despite the fact that the child is paying attention with prompting, this child is not
functioning well in this domain [of attending and completing tasks].”) and 20 C.F.R.
§ 416.926a(h)(3) (examples include “you frequently interrupt others” and “are easily
frustrated.”). In light of the guidance in the Social Security Rulings, the ALJ should
have discussed how L.H.’s limitations in other areas, particularly acquiring and
using information, impacted his functioning in attending and completing tasks.
2. IEPs
The “whole child” standard requires the ALJ to examine an individual’s
functioning relative to his or her non-disabled peers. “The functional equivalence
rules require us to begin by considering how the child functions every day and in all
settings compared to other children the same age who do not have impairments.”
SSR 09-1p (emphasis added). Here, the ALJ concluded that L.H. made “significant
gains” since his 2013 IEP based on the fact that L.H. “recently completed the third
grade in a self-contained special education classroom.” (R. at 29).
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It is well-settled that completion of a grade in a special education classroom is
not determinative of a child’s functioning. See Saracco ex rel. T.H. v. Berryhill, 2017
U.S. Dist. LEXIS 200542, *24-25 (“The regulations emphasize that a child who
receives special education accommodations cannot automatically be compared to
non-impaired children because ‘good performance in a special education setting does
not mean that you are functioning at the same level as other children your age who
do not have impairments.’”) (citing 20 C.F.R. § 416.924a(b)(7)(iv)). Progress under
an IEP does not equate to success as compared to non-disabled children. See A.H. ex
rel. Williams v. Astrue, No. 09 C 6981, 2011 WL 1935830, at *11 (N.D. Ill. May 18,
2011). Moreover, contrary to the ALJ’s conclusion that L.H. made “significant
gains”, the 2015 IEP specifically refers to L.H.’s “severe regression” and his need to
participate in extended year services, as well as his continued need for
accommodations and modifications. (R. at 265–70).
Also troubling is the ALJ’s conclusion that “[a]lthough he receives special
education services, this is consistently reported to be in response to cognitive
deficits rather than concentration deficits.” (R. at 31). It is not clear to the Court
how the ALJ reached this conclusion. As discussed, “mental impairments that affect
a child’s ability to learn may also affect a child’s ability to attend to or complete
tasks.” SSR 09-3p. Thus even if the ALJ is correct that L.H. required special
education services in response to “cognitive defects”, she failed to consider that
cognitive impairments may affect L.H.’s ability to concentrate. 3
It is also not clear to the Court how the ALJ gave “great weight” to L.H.’s updated school
records and found “slightly greater limitations” than the state agency consultants (R. at 28),
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3. L.H.’s focus on television and a tablet
The ALJ also pointed to L.H.’s ability to get to school, focus on television, and
focus on an electronic tablet as evidence of his ability to concentrate. (R. at 31). At
the hearing the ALJ stated, “…he can sit there and do that [use a tablet] for hours. I
mean, it looks like he can concentrate – that’s not his problem?” (Id. at 58). The ALJ
again cited L.H.’s “good focus on the tablet” in her opinion when discussing the
domain of attending and completing tasks. (Id. at 31). But the ALJ failed to explain
how L.H.’s focus on a tablet or television is determinative of his functioning in
school or daily life. “Children may function differently in unfamiliar or one-on-one
settings than they do in their usual settings at home, at school, in childcare or in
the community…[and] may appear more or less impaired on a single examination
(such as a consultative examination) than indicated by the information covering a
longer period.” 20 C.F.R. § 416.924a(b)(6). As explained in Social Security Ruling
09-4p:
Some children with impairments can attend to some tasks, but not to
all tasks in all settings. Such children may exhibit “hyperfocus,” an
intense focus on things that interest them, such as video games, but be
limited in their ability to focus on other tasks.
SSR 09-4p, 2009 WL 396033 *3; See also M.W. ex rel. Terry v. Astrue, No. 10 C 7813,
2012 WL 1532386 *13 (N.D. Ill. Apr. 30, 2012) (finding “it may be true that MW
could focus enough to play video games, but that fact alone is not enough to trump
on one hand, but on the other, found that L.H. was not markedly limited in attending and
completing tasks—the same finding as the state agency consultants. Moreover, the state
agency consultant assessments were completed in 2013 and 2014 without the benefit of the
2015 Teacher Questionnaire or 2015 IEP.
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the evidence that MW had problems” in the area of attending and completing
tasks.).
C. Other Issues
Because the Court is remanding on the ALJ’s assessment of the domain of
attending and completing tasks, the Court chooses not to address L.H.’s other
arguments. Nevertheless, on remand, the ALJ must reevaluate all six domains in
their entirety. The ALJ shall then reevaluate L.H.’s impairments, considering all of
the evidence of record, including L.H.’s and Ms. Simmons’ testimony, and shall
explain the basis of her findings in accordance with the applicable regulations and
rulings.
D. Summary
In sum, substantial evidence does not support the ALJ’s finding that L.H. had
less than marked restrictions in the domain of attending and completing tasks.
When reviewing a denial of disability benefits, a court may “affirm, reverse, or
modify the Social Security Administration’s decision, with or without remanding the
case for further proceedings.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011)
(citing 42 U.S.C. § 405(g)). The Court does not believe this case meets the standard
for an award of benefits and declines that request by Plaintiff. Briscoe ex. re. Taylor
v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005) (citation omitted) (Reversal with an
instruction to award benefits only appropriate if “all factual issues have been
resolved and the record can yield but one supportable conclusion.”). That is not the
case here, and it is not the purview of this Court to gather or reweigh evidence.
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Therefore, Plaintiff’s motion is granted insofar as it requests remand for further
proceedings. On remand, the ALJ shall reevaluate L.H.’s limitations in accordance
with this opinion, considering all of the evidence in the record, and shall explain the
basis for her findings in accordance with applicable regulations and rulings.
VI. CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment [15] is
GRANTED. Defendant’s Motion for Summary Judgment [17] is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405, the ALJ’s decision is reversed, and the
case is remanded to the Commissioner for further proceedings consistent with this
opinion.
Dated: March 2, 2018
E N T E R:
MARY M. ROWLAND
United States Magistrate Judge
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