Richardson v. Berryhill
Filing
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MEMORANDUM Opinion and Order: Plaintiff Patricia Richardson ("Plaintiff") on behalf of her minor ward, T.H., appeals the decision of the Commissioner of Social Security ("Commissioner") to deny T.H.'s application for disabili ty benefits. For the following reasons, Plaintiff's motion for summary judgment is granted [dkt. 18], and the case is remanded for further proceedings consistent with this Opinion. - Signed by the Honorable Susan E. Cox on 7/27/2018. [For further details see order] Mailed notice (np, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICIA RICHARDSON o/b/o T.H.,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations for the Social
Security Administration,
Defendant.
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No. 17-cv-6350
Magistrate Judge Susan E. Cox
MEMORANDUM OPINION AND ORDER
Plaintiff Patricia Richardson (“Plaintiff”) on behalf of her minor ward, T.H., appeals the
decision of the Commissioner of Social Security (“Commissioner”) to deny T.H.’s application for
disability benefits. For the following reasons, Plaintiff’s motion for summary judgment is granted
[dkt. 18], and the case is remanded for further proceedings consistent with this Opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Medical/Academic History
T.H. was born on May 22, 2004. (R. 29.) Unfortunately, much of T.H.’s early childhood was
marked by instability until Plaintiff became her guardian. 1 (R. 415-416, 515). Perhaps due to the
volatility of T.H.’s first few years, she has struggled to keep stride with some of her classmates
academically, and the record reflects that she has had trouble developing appropriate coping
mechanisms. In 2013, T.H. was referred for evaluation for an Individual Education Program (“IEP”)
due to “poor academic performance.” (R. 414.) The IEP states that T.H. was hospitalized at
Hartgrove Hospital in 2010 for two weeks for depression, and diagnosed with Impulse Control
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Following her placement in Plaintiff’s home, T.H.’s life appears to have become much more stable. It was noted in
T.H.’s initial assessment by a Chicago Public School Nurse that Plaintiff was “an outstanding individual working on
behalf of [T.H.],” which is certainly borne out elsewhere the record through Plaintiff’s tireless attempts to get T.H. the
help she needs to keep up in school and receive adequate medical treatment. (R. 416.)
Disorder. (R. 414, 419.) As part of the IEP, T.H. was given a battery of tests. On the Weschler
Individual Achievement Test (“WIAT-III”), the majority of T.H.’s scores were far below average
(e.g., bottom 10th percentile in eight of 16 categories, with only five categories above the 27th
percentile); her overall score on the WIAT-III was in the “below average” range. (R. 419-422.) The
IEP also assigned T.H. a score on the Reynolds Intellectual Assessment Scales (“RIAS”), which
showed that she was below average in the verbal index (19th percentile) and memory index (21st
percentile), and average in the non-verbal index (63rd percentile) and composite index (32nd
percentile). (R. 420.) T.H.’s teacher completed the Behavior Assessment System for Children
(“BASC-2”), and found that T.H. was “at-risk” in the areas of hyperactivity, atypicality, and
attention problems, and had “clinically significant” issues in aggression, conduct problems, anxiety,
depression, and withdrawal. (R. 423.) Finally, T.H. was evaluated pursuant to the Vineland II
Adaptive Rating Scales (“VABS-II”), which revealed that T.H. performed low in the domain of
communication (2nd percentile), moderately low in socialization (16th percentile) and adaptive
behavior composite (7th percentile) domains, and adequate in daily living skills (18th percentile).
(Id.) It was recommended, inter alia, that T.H. “receive special education services under the
category of a Learning Disability.” (R. 424.)
Prior to fourth grade, T.H. was re-evaluated for her IEP. The evaluation starts out by noting
that T.H.’s strengths included being eager to please her peers and adults, and that she had improved
significantly in her behavior. (R. 437.) However, it further stated that she struggled “drastically with
organizational skills,” was easily distracted, and needed “constant encouragement and praise to help
her achieve academic and behavioral success.” (Id.) The evaluation also mentioned that when T.H.
“is frustrated or angry, she has difficulty expressing herself and may shut down or not respond.” (R.
438.) This evaluation relied on the previous scores for T.H. on the WIAT-III and BASC-2 tests. (R.
437.) The IEP provided that T.H. be given 50% extended time for classwork, homework, and
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assessments (R. 442), and that she receive 360 minutes per week of special education in the general
classroom and 150 minutes per week in a separate break-out classroom. (R. 454.)
T.H.’s fifth grade IEP was completed in September 2014. (R. 301.) The evaluator wrote that
T.H. “struggles with meeting her grade level academic goals and it effects (sic) her efficiency and
effectiveness in the classroom on a social and emotional level.” (R. 303.) However, the IEP indicated
that T.H. had showed some improvement over the previous year, as her special education minutes
were reduced to 285 weekly in-class minutes, and 30 weekly minutes in a separate classroom.
(R. 311.)
The final IEP presented to the Administrative Law Judge (“ALJ”) was for T.H.’s sixth grade
year. It maintained the same amount of time for special education services as the previous IEP (i.e.,
285 minutes weekly in the general classroom, and 30 minutes weekly in a separate classroom).
(R. 329.) The IEP also reported T.H.’s scores in the Northwest Evaluation Association (“NWEA”)
test, which demonstrated that she was in the low range for literature, informational text, vocabulary
acquisition and use, operational and algebraic thinking, measurement and data, number operations,
and geometry; T.H. was two standard deviations below the mean in her reading score. (R. 318, 341.)
The narrative information on T.H.’s sixth grade IEP was more of a mixed bag. It noted that she
would often attempt to avoid classes by going into classes that were not on her schedule, and noted
that “this would be considered a part of her ADHD because of her limited level to concentrate in
terms of long term and short term concentration.” (R. 318.) It further stated that her “learning
disability greatly impedes her ability to access the general education curriculum and she requires
specialized instruction to be successful,” and “sometimes has difficulty expressing herself when
upset or frustrated and may shut down or not respond.” (R. 325.) However, there was progress
evident in the IEP, including “basic improvement with her reading skills” and being “able to step
outside herself and take a risk for wanting knowledge,” instead of “completely shut[ting] down or
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isolate[ing] herself from the teach or whoever is there to instruct her.” (R. 323.)
The administrative record also included several Social Security Administration
Questionnaires filled out by T.H.’s teachers and school counselors. The first was completed in
October 2013 by T.H.’s teacher, who reported that T.H. “often displays age inappropriate
behaviors,” such as crying, frowning, pouting, and refusing to speak when she did not get her way.
(R. 433.) The teacher found that T.H. had an obvious problem in handling frustration appropriately,
and slight or no problems in the remainder of the categories. (Id.)
The same teacher filled out a second questionnaire on June 2, 2014, stating that T.H.’s
reading grade level was at 1.4, math grade level was at 2.2, and written language grade level was
5.2 (T.H. was in fourth grade at the time). (R. 248.) She noted that T.H. appeared “immature
emotionally,” but had improved over the course of the year. (R. 253.) She found that T.H. had
obvious problems in the following areas: expressing ideas in written form, learning new material,
recalling and applying previously learned material, sustaining attention during play, focusing long
enough to finish an assigned activity or task, refocusing to a task when necessary, waiting to take
turns, working without distracting others, following rules, introducing and maintaining relevant and
appropriate topics of conversation, handling frustration appropriately, and responding appropriately
to changes in her own mood. (R. 249-253.) T.H. also exhibited serious problems with organizing
her own things or school materials, completing class/homework assignments, and completing work
accurately without careless mistakes. (R. 250.) The remainder of the categories were graded as
showing slight or no problems. (R. 249-253.)
The final questionnaire, signed and dated February 2, 2015, was apparently completed by
multiple teachers or counselors, judging by the variety of handwriting on the questionnaire. It shows
that T.H.’s problems were becoming more pronounced. She had serious problems in the following
areas: comprehending oral instructions, understanding school and content vocabulary, reading and
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comprehending written material and doing math problems, providing organized oral explanations
and adequate descriptions, expressing ideas in written form, applying problem-solving skills in class
discussion, and using good judgment regarding personal safety and dangerous circumstances.
(R. 275-279.) She also exhibited very serious problems in identifying and appropriately asserting
emotional needs, responding appropriately to changes in her own mood, using appropriate coping
skills to meet daily demands of the school environment, and knowing when to ask for help. (R. 279.)
There was also a slew of obvious problems identified. (R. 275-79.) One teacher noted that T.H.’s
problems in her interpersonal life and dealing with her academic problems were impeding her
academic growth. (R. 275.) Another stated that T.H. struggled to complete her homework, despite
accommodations and modifications. (R. 276.) A third opined that T.H. struggled academically and
emotionally, and did not know how to re-direct herself when she became frustrated. (R. 279.)
The record also shows that T.H. spent several weeks treating at the pediatric day program at
Garfield Park Hospital, after her “[s]chool requested partial hospitalization due to inability to focus,
hyper in the classroom, day dreaming, poor attention, and focus.” (R. 519.) Upon admission, T.H.
demonstrated grossly intact concentration, attention, and memory, but she was described as
“distracted and fidgety” the day after her admission. (R. 520.) T.H. reported that it was difficult for
her to understand reading and math, even when she got help. (R. 522.)
T.H.’s administrative file also includes opinion evidence from several State agency
consultants. In November 2013, Donna Hudspeth, Psy. D., and Victoria Dow, M.D., both found that
T.H. did not meet, medically equal, or functional equal any listing, and had less than marked
impairments in all functional domains. (R. 79-80.) In July 2014, Howard Tin, Psy. D., and Deborah
Allbright, M.D., reviewed T.H.’s claim and made the same findings as the aforementioned
consulting doctors, except they found that T.H. had marked limitations in the domain of Acquiring
and Using Information. (R. 88-90.) Finally, in April 2015, Glen Pittman, M.D., and Bharati Jhaveri,
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M.D., reached conclusions that matched the November 2013 findings of the first Stage agency
doctors. (R. 98-100.) Although the ALJ indicated that Drs. Pittman and Jhaveri reviewed “updated
records,” 2 there is no indication that they received the latest IEP and their opinions pre-date
Plaintiff’s hospitalization. (R. 33.)
B.
Procedural History/ALJ Opinion
On March 21, 2014, an application was filed on behalf of T.H. with an alleged disability
onset date of August 1, 2008. (R. 26.) The claim was initially denied on November 7, 2013, and
upon reconsideration on April 17, 2015. (Id.) Plaintiff filed a written request for a hearing, which
took place on August 15, 2016, before ALJ Laurie Wardell. (Id.) On September 26, 2016, the ALJ
issued an opinion finding that T.H. was not disabled. (R. 26-43.) The ALJ found that T.H. suffered
from severe impairments in the form of a learning disorder, Attention Deficit Hyperactivity Disorder
(“ADHD”), and a cleft lip status post-surgery, 3 but that T.H.’s impairments did not meet or equal
any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 29.) In the six
functional equivalence domains (discussed more fully below), the ALJ found that T.H. had less than
marked limitations in the domains of Acquiring and Using Information, Attending and Complete
Tasks, Interacting and Relating with Others, Caring for Yourself, and Health and Physical WellBeing, and no limitations in Moving About and Manipulating Objects. (R. 35-42.) Because the Court
finds that the ALJ failed to build an accurate and logical bridge between her findings on the
functional domains and the evidence in the record, the Court remands this case for proceedings
consistent with this opinion. 4
2
The updated records appear to primarily be a Psychological Assessment performed by Mark B. Langgut, Ph.D., on
March 11, 2015. (R. 514.) T.H. showed no behavioral abnormalities, but deficient basic computational skills. (R. 516.)
Dr. Langgut found that T.H. had a learning disorder and a history of child abuse, but deferred all other diagnoses.
(R. 517.)
3
The record includes treatment for T.H.’s cleft lip, but the Plaintiff’s brief does not address any of the ALJ findings
on that front, so the Court will not discuss them further in this Opinion.
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Because the Court remands on the basis articulated above, it does not reach the other issues raised by the Plaintiff
on this appeal.
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SOCIAL SECURITY REGULATIONS AND STANDARD OF REVIEW
A child under the age of eighteen is considered disabled if she “has a medically determinable
physical or mental impairment, which results in marked and severe functional limitations, and which
can be expected to result in death or 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). If the child is not working and
has a severe impairment, the ALJ must determine whether the child’s impairments meet, medically
equal, or functionally equal the listings found in 20 C.F.R. Ch. 404, Subpart P, Appendix 1. 20
C.F.R. § 416.924(a)-(d). In determining whether a child’s impairments functionally equal a listing,
the ALJ considers 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. 20 C.F.R. § 416.926a(b)(1)(i)-(iv).
“The 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 if the final decision of the Commissioner of Social Security is based upon
substantial evidence and the proper legal criteria. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir.
2004). 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). In reviewing a commissioner’s decision, the Court 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.” Young v. Barnhart, 362 F.3d 995, 1001
(7th Cir. 2004). Even where “reasonable minds could differ” or an alternative position is also
supported by substantial evidence, the ALJ’s judgment must be affirmed if supported by substantial
evidence. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008); Scheck, 357 F.3d at 699.
However, the ALJ must also build an accurate and logical bridge between the evidence and
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the result to allow meaningful judicial review of the ALJ’s findings and conclusions. Varga v.
Colvin, 794 F.3d 809, 813 (7th Cir. 2015); O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th
Cir.2010). The court must be able to trace the ALJ’s reasoning from evidence to conclusion. Minnick
v. Colvin, 775 F.3d 929, 938 (7th Cir. 2015). “Even if the court agrees with the ultimate result, the
case must be remanded if the ALJ fails in his or her obligation to build that logical bridge.” Aranda
v. Berryhill, 2018 WL 2426906, at *2 (N.D. Ill. May 30, 2018) (citing Sarchet v. Chater, 78 F.3d
305, 307 (7th Cir. 1996)). While the ALJ need not discuss every piece of evidence in the record, the
ALJ must also take care to avoid “cherrypicking” those portion of the record that support her
conclusions, while ignoring those that do not. See Bauer v. Astrue, 730 F. Supp. 2d 884, 893 (N.D.
Ill. Aug. 11, 2010).
DISCUSSION
The Court does not believe that the ALJ built an accurate and logical bridge between the
evidence she cited in the record and the conclusions she ultimately reached in the functional domains
listed above. While the ALJ did an admirable job detailing and cataloging T.H.’s medical history,
the opinion evidence, and her various IEPs, when it came to explaining precisely how or why that
evidence supports or refutes her conclusions, the ALJ fell short. The Court will discuss some
examples below.
A.
Acquiring and Using Information
In the domain of Acquiring and Using Information, the ALJ noted T.H.’s RIAS and WIAT-
III scores and discussed the IEP findings and recommendations, but failed to explain why this
evidence supported her conclusions. For example, the Court is left to guess why 285 minutes of
special education and no “pull-out” services (which were both cited as supporting evidence by the
ALJ) would be indicative of a less-than-marked limitation in this domain. (R. 36.) It seems equally
plausible to the Court that almost one hour of special education instruction per day could be equally
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indicative of a marked limitation in Acquiring and Using Information, and the ALJ’s discussion
sheds no light on how this evidence proves the ALJ’s finding in this domain.
Moreover, the ALJ failed to build an accurate and logical bridge in this domain by engaging
in improper cherrypicking. In particular, the ALJ pulled one quote from T.H’s IEP stating that
Plaintiff “does very well in the classroom” when she puts forth her best effort, and used it support
the ALJ’s finding that T.H. does not have marked limitations in Acquiring and Using Information.
This very same IEP noted that T.H. “struggles with meeting her grade level academic goals,” which
is arguably more persuasive evidence regarding T.H.s ability to acquire and use information. (R.
303.) However, that passage is not cited anywhere in the discussion of this domain. Moreover, the
ALJ did not mention any of the myriad other evidence in the record suggesting Plaintiff’s limitations
in this domain that appear elsewhere in the record, including the most recent Social Security
Administration Teach Questionnaire, which showed that T.H. exhibited serious problems in several
areas that would directly impact this domain, including comprehending oral instructions,
understanding school and content vocabulary, reading and comprehending written material,
comprehending and doing math problems, expressing ideas in written form, and applying problemsolving skills in class discussions. 5 (R. 275.)
Finally, the Court notes that at least one State agency reviewer found that T.H. had marked
limitations in this domain, but the ALJ did not rely on this because there were also two state agency
reviewers who found otherwise. This might be sufficient if the ALJ’s reasoning for assigning less
weight to the consultant who found marked limitations in Acquiring and Using Information were
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The ALJ only gave slight weight to this questionnaire because “it is not clear who completed each portion, in what
capacity each person interacted with the claimant, or how frequently or how long each person had interacted with the
claimant.” (R. 35.) The Court does not believe the ALJ adequately explained why this necessarily makes the
questionnaire unreliable. First, there are at least two identifiable individuals who filled out the form – Dwight Powell
(the school social worker) and Nancy Handwerker (T.H.’s case worker). Second, there a fair assumption that each
portion of the questionnaire was filled out by the individual likely to have the most knowledge regarding that respective
section. Finally, even if each of these individuals spent very little time with T.H., it is unclear how the ALJ could
consider that a detriment while maintaining logical consistency when she gave the most weight to the opinions State
agency reviewers who had never met T.H. at all.
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more robust. However, the ALJ simply stated that she found “that the totality of the evidence more
firmly supports the conclusion of Drs. Pittman and Hudspeth, who each independently concluded
the limitation in that domain was less than marked.” (R. 33.) It is unclear which portions of the
record comprise the “totality” of the evidence, and the ALJ makes no effort to cite those portions
that support this conclusion. Again, one could easily find evidence in the record to conclude that Dr.
Tin’s opinion that T.H. had marked limitations in this domain was correct, and it was the ALJ’s duty
to build a logical bridge between the evidence that supported a contrary conclusion and her findings.
She did not do so, and the Court must remand on this basis.
B.
Attending and Completing Tasks
The Court finds that the ALJ’s opinion suffers from the same issue in the domain of
Attending and Completing Tasks. Again, the ALJ relied on the State agency physicians’ findings to
support her conclusion in this domain. However, those findings were made before T.H. was
hospitalized for four weeks for ADHD at the request of her school. It is difficult to imagine how the
ALJ could have relied on those doctors’ findings when they did not have the benefit of those hospital
records. Furthermore, ALJ did not attempt to explain why those findings would be authoritative on
this issue, which would have been so obviously affected by those records. In order for the ALJ to
build a logical bridge, she will need to explain why those findings remain compelling in light of the
subsequent medical history.
Additionally, the ALJ’s treatment of the hospital records themselves is equally problematic.
The ALJ does note that Plaintiff was in a partial hospitalization program for ADHD, but discounts
the probative value of those records because T.H. “exhibited grossly intact attention and
concentration.” (R. 37.) While that may have been true, the remainder of T.H.’s records from
Garfield Park Hospital paint a very different picture. Besides appearing fidgety at the initial intake,
the record shows that T.H. was prescribed Ritalin, but failed to get her prescription filled (R. 529)
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and then forgot to take her medications over the weekend at one point. (R. 539.) Moreover, the ALJ
did not mention that the hospitalization was the behest of T.H.’s school, where she was observed on
a daily basis and it was determined that she would require a partial hospitalization program “due to
inability [to] focus, hyper in the classroom, day dreaming, poor attention and focus.” (R. 519.) It
would be impossible for the ALJ to accurately assess a domain that “considers how well a child is
able to focus and maintain attention, and how well she is able to being, carry through, and finish
activities” without a significantly more in-depth discussion of these records and their effect on
T.H.’s limitations in this domain. (R. 36.) Because the ALJ failed to do so, the Court believes that
she failed to build a logical bridge between the evidence and her conclusions. 6
CONCLUSION
For the foregoing reasons, Plaintiff’s motion is granted [dkt. 18], and the case is remanded
for further proceedings consistent with this opinion.
ENTERED: 7/27/18
______________________________
U.S. Magistrate Judge, Susan E. Cox
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Because the ALJ erred in analyzing at least two functional domains, it leaves open the possibility that T.H.’s
condition functionally equals a listing. That is sufficient to require remand. However, the Court wants to be clear that
the ALJ should not focus only the two functional domains discussed in this Opinion, but the ALJ should analyze all of
the domains on remand. Additionally, although the Court did not reach the issues raised by the Plaintiff in this matter
relating to the Appeals Council’s rejection of additional records presented by the Plaintiff, the Court believes it would
be prudent for the ALJ to admit those records into evidence on remand, and include them in any subsequent opinion
issued by the ALJ.
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