Santiago v. Saul

Filing 28

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cummings on 9/19/2022. Mailed notice(cc, )

Case: 1:19-cv-08015 Document #: 28 Filed: 09/19/22 Page 1 of 25 PageID #:1783

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARA S.,
on behalf of her minor child, C.S.,
Plaintiff,
v.
KILOLO KIJAKAZI,1
Commissioner of Social Security,
Defendant.

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No. 19-cv-8015
Magistrate Judge Jeffrey I. Cummings

MEMORANDUM OPINION AND ORDER
Plaintiff Mara S., on behalf of her minor child C.S. (“Claimant”), brings this motion for
summary remand to reverse the final decision of the Commissioner of Social Security
(“Commissioner”) denying Claimant’s eligibility for Supplemental Security Income (“SSI”)
benefits. The Commissioner brings a cross-motion seeking to uphold the prior decision. The
parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28
U.S.C. §636(c). The Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §405(g).
For the reasons stated below, plaintiff’s motion for summary remand, (Dckt. #21), is denied and
the Commissioner’s motion for summary judgment, (Dckt. #22), is granted.
I.

BACKGROUND
A.

Procedural History

On July 5, 2011, plaintiff Mara S. filed an application for SSI on behalf of her minor
child, C.S., who was then three years old. The application alleged disability dating back to July

In accordance with Internal Operating Procedure 22 - Privacy in Social Security Opinions, the Court
refers to the plaintiff only by her first name and the first initial of her last name. Acting Commissioner of
Social Security Kilolo Kijakazi has also been substituted as the named defendant. Fed.R.Civ.P. 25(d).

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1, 2008, due primarily to scoliosis. (R. 20). The claim was denied initially and upon
reconsideration. Plaintiff filed a timely request for a hearing, which was held on October 17,
2012, before an Administrative Law Judge (“ALJ”). (R. 37-56). On November 5, 2012, the ALJ
issued a written decision denying Claimant’s application for benefits. (R. 17-36). The Appeals
Council denied review on March 19, 2014, and plaintiff appealed to the U.S. District Court for
the Northern District of Illinois. On March 15, 2016, the District Court ordered that the case be
remanded for further proceedings. On May 13, 2016, the Appeals Council vacated the decision
of the Commissioner and remanded the case to ALJ Edward P. Studzinski. (R. 1040-43).2
A second hearing was held on August 12, 2016, when Claimant was eight years old. (R.
940-73). The ALJ issued a written decision on January 9, 2017, again denying Claimant’s
application for benefits. (R. 886-913). The Appeals Council denied review on June 19, 2017,
leaving the decision of ALJ Studzinski as the final decision of the Commissioner. (R. 870-76).
This action followed.
B.

The Social Security Administration Standard to Recover Benefits

Disabled children are entitled to benefits from the Social Security Administration, see 42
U.S.C. §1382c(a)(3)(C), but the determination of disability follows a different model then that
used for adult applicants. See McCavitt v. Kijakazi, 6 F.4th 692, 693 (7th Cir. 2021). The SSA
employs a three-step analysis to decide whether a child is disabled. 20 C.F.R. §416.924. First,
the ALJ considers whether the child is engaged in any substantial gainful activity. If he is, his
claim is denied. At step two, the ALJ considers whether the child has a medically severe
impairment or combination of impairments. If he does not, his claim is denied. Id. Finally, the

While the District Court case was pending, plaintiff filed a second claim on Claimant’s behalf on May 6,
2014. (R. 1006-11). In its order remanding the case, the Appeals Council directed that the two claims be
consolidated. (R. 1042).

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ALJ considers whether the child’s medically determinable impairments meet or functionally
equal the criteria of a listing. To find an impairment functionally equivalent to one in the
listings, the ALJ must analyze the impairment’s severity in six age-appropriate 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). If the ALJ finds that the child has a “marked”
limitation in two of the domains or an “extreme” limitation in one, the child functionally equals a
listing and is considered disabled. 20 C.F.R. §416.926a(d).
C.

The Evidence Presented to the ALJ

Claimant alleges disability primarily due to limitations stemming from scoliosis and
speech and language impairments. In her motion for summary remand, plaintiff focuses on two
domains (namely, interacting and relating with others, and moving about and manipulating
objects) and asserts that the ALJ erred by not finding that C.S. had a “marked” limitation with
respect to both. (Dckt. #21 at 8-12).3 Accordingly, the following evidence consists only of
excerpts pertaining to these two domains.
1.

Medical Records Related to Claimant’s Scoliosis

Claimant was born on March 30, 2008. When he was thirteen months old, he began
treatment at Children’s Memorial Hospital for infantile scoliosis and torticollis. (R. 238).
Claimant was subsequently diagnosed with a tethered spinal cord, and, on August 14, 2009, he
underwent surgery for a tethered spinal cord release. (R. 317-19). Despite the surgery,

As the Commissioner points out, plaintiff also devoted a portion of her brief toward a third domain
(namely, health and physical well-being). (Dckt. #21 at 12-13). However, because the ALJ found that
C.S. had a “marked” limitation with respect to this domain, (R. 905), and plaintiff does not argue that
C.S.’s limitation regarding this domain is “extreme,” (Dckt. #21 at 12-13), any alleged error with respect
to how the ALJ explained his finding cannot support remand because it is immaterial and harmless.

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Claimant’s doctors determined that his scoliosis was progressively worsening and recommended
brace treatment. (R. 430). In May of 2010, Claimant was fitted with a low-profile thoracolumbar-sacral brace and was directed to wear it twenty-three hours per day. (R. 437, 445). Eight
months later, in January of 2011, Claimant was fitted with a high-profile brace. (R. 520).
On October 31, 2011, Claimant’s physical limitations were evaluated in connection with
his initial individualized education program (“IEP”). (R. 691). Physical therapist Sarah
Mooberry noted that Claimant’s brace limited his ability to bend at the waist, limited his range of
motion, and made it difficult for him to go up and down stairs. (R. 690-91). She added that,
despite these limitations, Claimant found “ways to work around” the brace. (R. 691). He could
sit in a regular classroom chair, transition up from the floor through one half kneeling, skip with
a left leg lead, jump forward consecutively, and use the restroom on his own (although he needed
help taking down and pulling up his pants). (R. 686, 691). Claimant’s lower extremity range of
motion was within normal limits, as was his muscle tone. Mooberry concluded that Claimant
had “generally functional skills for the school setting,” but would benefit from educationally
relevant physical therapy. (R. 686).
During a physical therapy review on April 3, 2013, Sarah Domin, MPT, found that, due
to Claimant’s “functional independence in accessing all areas of his educational environment,”
he no longer qualified for educationally relevant physical therapy. (R. 1195).
On October 27, 2014, a treating physician noted that Claimant was no longer wearing his
brace as he had outgrown it. (R. 1199). Treatment notes from a January 21, 2016 check-up
indicate that Claimant had lost his insurance and had not been seen by any orthopedic or
neurosurgery providers in more than a year. (R. 1611-12). The doctor noted that Claimant had

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not worn his brace, which no longer fit, for more than six months. (R. 1612). A new brace was
ordered, which Claimant was instructed to wear sixteen to twenty hours per day. (Id.).
2.

Medical Records Related to Claimant’s Speech and Language
Impairments

In addition to his spine-related impairments, Claimant – who speaks both English and
Spanish – also struggles with speech and language. (R. 687-90, 693). Claimant’s speech was
initially evaluated at ICG Rehab Services on January 20, 2010, when Claimant was one year and
nine months old. At that time, he “demonstrated low average receptive and expressive language
development,” with a nineteen percent expressive delay and a twenty-nine percent receptive
delay. (R. 710-11). Claimant was re-assessed in July of 2010. (R. 710). Treatment notes
indicate that he showed progress, presenting with a fifteen percent expressive delay and a
nineteen percent receptive delay. (R. 711). No therapy was recommended. (R. 710).
On February 7, 2011, Claimant – then two years and ten months old – was reassessed by
Speech Language Pathologist (“SLP”) Evanne M. Hoolsema, Ph.D., at ICG Rehab Services. (R.
710-12). She found that Claimant demonstrated normally developing receptive and expressive
language skills with a nine percent expressive delay and no receptive delay. (R. 711). Dr.
Hoolsema noted that Claimant could express his needs effectively with words and that, although
his speech was not perfectly clear, his mom could understand most of what he said. (Id.). No
areas of concern were noted. (R. 712).
As noted above, Claimant was evaluated in connection with his first IEP on October 31,
2011, when he was three years and seven months old. (R. 691). At that time, SLP Heidi Valerio
found that Claimant’s receptive and expressive language skills were in the moderately low range
in Spanish (with English support). He demonstrated only fifty percent intelligibility in single

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words in both Spanish and English, (R. 687), and his total language score was in the third
percentile, within the moderately low range, (R. 688).
The next report regarding Claimant’s speech and language abilities in the record is from
more than three years later. During a December 8, 2014 IEP evaluation, SLP Leticia Sotelo
found that Claimant – then six years and eight months old – had receptive language skills in the
average range and expressive language skills in the very low to borderline range. (R. 1198). His
“[o]verall language was in the very low range when only Spanish was used; however, he
increased his scores to borderline when English was used.” (Id.). Despite these findings, she
also found that he had “made good progress in the areas of speech and language,” noting that his
intelligibility had improved to more than seventy percent accuracy, meaning it was easier to
understand what he was saying. (R. 1194-95). Sotelo recommended that Claimant continue
receiving speech and language services for thirty minutes per week. (R. 1195).
Claimant’s IEP was reassessed the following year, on December 15, 2015. Claimant
“continue[d] to have challenges in the area of speech and language” which were “impacting his
communication.” (R. 1194). The evaluator noted that Claimant would likely have difficulty
meeting expectations in a regular classroom setting and recommended that Claimant be given
“systematic intense and direct instruction . . . to develop phonological, decoding, and
automaticity skills,” as well as “ample time to process questions and directives, extended time to
complete assignments, and repetition of directions and instruction.” (Id.).
3.

Evaluations from Claimant’s Teachers

On October 3, 2011, Claimant’s pre-school teacher, Clara Calderon, completed a
questionnaire on Claimant’s behalf. (R. 180-87). Regarding Claimant’s ability to interact and
relate with others, Calderon – who had spent two and a half hours with Claimant every school

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day for seven weeks – noted that Claimant had slight problems with seeking attention,
expressing anger, asking permission appropriately, following rules, respecting and obeying
adults in authority, using language appropriate to the situation and listener, and taking turns in
conversation, (R. 183), as well as obvious problems relating experiences and telling stories,
using adequate vocabulary and grammar to express thoughts/ideas in general, and engaging in
everyday conversation, (Id.). Calderon reported neither “serious” nor “very serious” problems in
this domain, (R. 183), but noted that she could understand no more than half of what Claimant
said when the topic of conversation was known to her and “very little” when the topic of
conversation was unknown, (R. 184). With repetition and rephrasing, Calderon could understand
Claimant one half to two thirds of the time. (Id.) As for moving about and manipulating objects,
Calderon found that Claimant exhibited slight problems managing pace of his physical activities
or tasks, and serious problems moving his body from one place to another (standing, walking,
running, jumping climbing). (Id.).
Claimant’s first grade teacher, Pedro Ricordez, completed the same questionnaire three
and a half years later, on May 28, 2015. At that time, Ricordez observed that Claimant had no
problems in interacting and relating with others. (R. 1161). In the section regarding Claimant’s
ability to move about and manipulate objects, Ricordez found that Claimant exhibited only slight
problems in every category. (R. 1162).
4.

Function Reports

Claimant’s mother completed a function report on July 20, 2011, when Claimant was
three years and three months old. (R. 154-163). She noted that Claimant could be understood
“most of the time” by people who knew him, as well as people who did not. (R. 158). Although
Claimant had “trouble understanding words,” he could speak clearly. (Id.). Claimant’s mother

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indicated that although he did not ask a lot of questions, use complete sentences, talk about what
he was doing, or tell stories, Claimant took part in conversations with other children and asked
for the things he wanted. (R. 158-59). Claimant could ride a tricycle and wind up a toy, but
could not catch a large ball, print letters, write his name, or use scissors. (R. 161).
Claimant’s mother completed a second function report on May 6, 2014, when Claimant
was six years and one month old. She indicated that Claimant had no problems speaking clearly
and that his ability to communicate was not limited. (R. 1139-40). She also noted that Claimant
did not know the days of week, months of year, or how to tell time and count change. (R. 1141).
Claimant could walk, throw a ball, and ride a bike, but could not run, jump rope, use roller
skates, or swim. (R. 1142).
5.

Evidence from State Agency Consultants

On August 16, 2011, state agency consultant Lenore Gonzalez, M.D., completed a
Childhood Disability Form regarding Claimant’s case. (R. 600-05). She concluded that he had
no limitation in interacting and relating with others, less than marked limitations in moving about
and manipulating objects, and marked limitations in the health and physical well-being domain.
(R. 602-03). At the time of Dr. Gonzalez’s review, the file did not include evidence regarding
Claimant’s language and speech impairment. (R. 659).
State agency SLP Diane Lowry and state agency medical consultant Cosme Cagas, M.D.,
reviewed Claimant’s file on December 14, 2011, and December 22, 2011, respectively. They
found that Claimant had marked limitations in interacting and relating with others, (R. 656), but
less than marked limitations in moving about and manipulating objects and health and physical
well-being, (R. 657).

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6.

Hearing Testimony

Claimant appeared at the August 12, 2016 hearing accompanied by his mother and
attorney. He testified that he cannot sit down when wearing his brace, (R. 971), but that he can
do jumping jacks and play games like tag when his brace is off, (R. 966-67).
Claimant’s mother corroborated Claimant’s statement that he cannot sit in a chair when
wearing his brace. (R. 955). She also testified that Claimant cannot ride his bike, play sports, or
run when his brace is on, (R. 955), and that the brace irritates his skin, (R. 963). According to
his mother, Claimant typically takes the brace off only when he showers and goes to gym class.
(R. 955). At the time of the hearing, however, Claimant’s mother testified that he had not been
wearing his brace for six months because he had grown out of it. (R. 958). To get a new brace
approved by the insurance company, Claimant’s mother had to submit a letter of necessity from
Claimant’s orthopedic specialist. She testified that because of the long waiting list to see the
specialist, she had not been able to secure the letter until the day before the hearing. (Id.).
D.

The ALJ’s Decision

In his January 9, 2017 decision, the ALJ noted that Claimant was a preschooler on July 5,
2011 (the date the application was filed) and was a school-age child at the time of the hearing.
(R. 892). Then, beginning the three-step analysis, he found that Claimant had not engaged in
substantial gainful activity since the application date. (Id.). At step two, he found that Claimant
suffered from the severe impairments of scoliosis and speech delay. (Id.). At step three, the ALJ
concluded that Claimant’s medically determinable impairments did not meet or functionally
equal the criteria of a listing. (Id.). Assessing the domains, he found that Claimant had a marked
limitation in health and physical well-being and less than marked limitations in every other
domain, including interacting and relating with others and moving about and manipulating

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objects. (R. 902). Accordingly, the ALJ concluded that Claimant had not been disabled, as
defined in the Social Security Act, since the date the application was filed. (R. 906).
II.

STANDARD OF REVIEW
A claimant who is found to be “not disabled” may challenge the Commissioner’s final

decision in federal court. Judicial review of an ALJ’s decision is governed by 42 U.S.C.
§405(g), which provides that “[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g). “Substantial
evidence is not a high threshold: it means only ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Karr v. Saul, 989 F.3d 508, 511 (7th Cir.
2021), quoting Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal quotation marks
omitted). The Commissioner’s decision must also be based on the proper legal criteria and be
free from legal error. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004); Steele v. Barnhart,
290 F.3d 936, 940 (7th Cir. 2002).
A court reviews the entire record, but it does not displace the ALJ’s judgment by
reweighing the facts, resolving conflicts, deciding credibility questions, making independent
symptom evaluations, or otherwise substituting its judgment for that of the Commissioner.
McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011); Elder v. Astrue, 529 F.3d 408, 413 (7th
Cir. 2008). Instead, the court looks at whether the ALJ articulated an “accurate and logical
bridge” from the evidence to his conclusions. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).
This requirement is designed to allow a reviewing court to “assess the validity of the agency’s
ultimate findings and afford a claimant meaningful judicial review.” Scott v. Barnhart, 297 F.3d
589, 595 (7th Cir. 2002). Thus, even if reasonable minds could differ as to whether the claimant

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is disabled, courts will affirm a decision if the ALJ’s opinion is adequately explained and
supported by substantial evidence. Elder, 529 F.3d at 413.
III.

ANALYSIS
Claimant (through his mother) makes three arguments in support of remand. First, he

argues that the ALJ’s finding that he had a “less than marked” limitation in interacting and
relating with others was unsupported by the record. Second, Claimant argues that the ALJ’s
finding that he had a “less than marked” limitation in moving about and manipulating objects
was similarly unsupported. Third, Claimant argues that the ALJ improperly discounted the
subjective complaints of Claimant and his mother.
A.

The ALJ’s finding that Claimant had a less than marked limitation in
interacting and relating with others was supported by substantial evidence.

The domain of interacting and relating to others involves:
considering how well a child is able to initiate and sustain emotional connections
with others, develop and use the language of the community, cooperate with others,
comply with rules, respond to criticism, and respect and take care of the possession
of others. 20 C.F.R. §416.929a(i). Interacting and relating to others relates to all
aspects of social interaction at home, at school, and in the community.
Fant ex rel. LeBlanc v. Colvin, No. CIV.A. 12-3032, 2013 WL 5671326, at *4 (E.D.La. Oct. 9,
2013); see also Taylor v. Colvin, No. 15 CV 3176, 2016 WL6774230, at *14 (N.D.Ill. Nov. 14,
2016). Thus, the ALJ must “analyze both the child’s ability ‘to form and sustain relationships
with family members, friends, and others’ and the child’s ‘response to persons in authority,
compliance with rules, and regard for the possessions of others.’” Bianchi v. Colvin, No. 13 CV
1254, 2015 WL 3962524, at *3 (N.D.Ill. June 29, 2015), quoting SSR 09-5p. Moreover, because
communication skills are “essential to both interacting and relating,” the ALJ must also consider
“the speech and language skills children need to speak intelligibly and to understand and use the

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language of their community,” as well as whether the child can “speak clearly enough to be
understood” within “age-appropriate expectations.” SSR 09-5P, 2009 WL 396026, at *2-3.
As stated above, the ALJ found that Claimant had a less than marked limitation in
interacting and relating to others. (R. 899-900). Claimant argues that the ALJ’s analysis of his
ability to interact and relate with others was insufficient for five reasons. First, Claimant asserts
that the ALJ improperly substituted his layman’s view of Claimant’s abilities for that of an
expert and, relatedly, should have sought an updated opinion from a consultant rather than
weighing the evidence in the record himself. Claimant also argues that the ALJ improperly
relied on evidence of Claimant’s improvement, failed to adequately explain his finding that
Claimant did not have a marked limitation in this domain for any twelve-month period, and
mischaracterized evidence related to this domain. The Court disagrees on all counts.
1.

The ALJ did not “play doctor” when finding that Claimant did not
exhibit a marked impairment in interacting and relating with others.

On December 14, 2011, state agency consultants, Dr.Cagas, and SLP Lowry (the
“Consultants”), found that Claimant had a marked limitation in interacting and relating with
others. (R. 656). Lowry primarily based this finding on the October 3, 2011 report by
Claimant’s kindergarten teacher, who indicated that she could only understand Claimant fifty
percent of the time when the topic of conversation was known to her and “very little” when it
was not. (R. 184). Although the Consultants reviewed Claimant’s file when Claimant was only
three years old, there is no more recent medical opinion in the record as to Claimant’s limitations
in this domain.
The ALJ considered the Consultants’ assessment regarding Claimant’s interacting and
relating with others but gave it no weight. (R. 901). According to the ALJ, “significant
improvement in Claimant’s speech since October 2011,” indicated that Claimant was no longer
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markedly limited in this domain and rendered the Consultants’ assessment outdated. (Id.). The
ALJ primarily relied on four pieces of evidence to support his finding of improvement: (1) the
2014 function report by Claimant’s own mother, which indicated that Claimant had no
limitations in his ability to talk or communicate, (R. 1139-40); (2) Claimant’s 2014 IEP, which
noted that Claimant’s intelligibility had improved, (R. 1194-95); (3) the 2015 evaluation by
Claimant’s first grade teacher, which indicated that Claimant had no limitations in his ability to
interact or relate with others, (R. 1161); and (4) the ALJ’s personal observations of Claimant at
the hearing, during which Claimant spoke intelligibly and “answered questions appropriately,”
(R. 900). The ALJ’s decision to reject the Consultants’ assessment on the ground that it was
outdated and failed to account for this evidence was supported by substantial evidence. See, e.g.,
Frank B. v. Saul, No. 18 C 2099, 2019 WL 6307651, at *10 (N.D.Ill. Nov. 25, 2019) (“The
ALJ’s decision to discount a non-examining agency opinion rendered in the absence of th[e] full
record was not merely reasonable; it was required.”).
The ALJ further noted that Claimant’s mother, Claimant, his IEPs, and his school records
established that Claimant: (1) had no disciplinary problems at school; (2) enjoyed being around
and liked to play with other children his age and was able to make friends; (3) showed affection
towards his parents and other children; (4) generally got along with adults and school teachers;
(5) consistently participated in class and group activities; and (6) was a very helpful, courteous,
polite, and hard-working student. (R. 900-01). “In essence, [C]laimant [had] no behavioral
problems.” (R. 901). Notably, the Consultants’ assessment of Claimant’s ability to interact and
relat with others did not address the status of Claimant’s interpersonal relationships, but instead
focused solely on Claimant’s ability to communicate. (R. 656).

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Claimant now argues that, as a layperson, the ALJ was not qualified to determine whether
this evidence supported a finding that Claimant was not markedly limited in this domain. While
the question of whether a claimant’s condition medically equals a listed impairment is “strictly a
medical determination,” Hickman v. Apfel, 187 F.3d 683, 688 (7th Cir.1999), “the rating of the
functional domains is an administrative determination based on medical and nonmedical
evidence . . . ,” Julius v. Colvin, No. 15-cv-675-bbc, 2016 WL 5922318, at *5 (W.D.Wis. Oct.
11, 2016); see 20 C.F.R. §416.926a(n) (“For cases at the [ALJ] or Appeals Council level, the
responsibility for deciding functional equivalence rests with the [ALJ] or Appeals Council.”).
Accordingly, the ALJ was qualified to consider the medical and nonmedical evidence in the
record and make an administrative finding as to whether Claimant was markedly limited in his
ability to interact or relate with others. See Simila v. Astrue, 573 F.3d 503, 515 (7th Cir. 2009)
(“The [ALJ] is not required or indeed permitted to accept medical evidence if it is refuted by
other evidence – which need not itself be medical in nature . . . .”); Buckanon on behalf of J.H. v.
Astrue, No. 08-C-221, 2009 WL 10699462, at *5 (E.D.Wis. Jan. 8, 2009) (“[W]hile the ALJ is
required to consider findings made by a medical consultant, the decision as to whether a
plaintiff’s impairments, or combination of impairments, result in a marked limitation is a legal
question left to the ALJ to decide.”).
2.

The ALJ was not required to obtain an updated medical opinion
regarding functional equivalence.

Claimant’s next argument – that the ALJ “should have sought an updated opinion rather
than weigh several years’ worth of evidence himself,” (Dckt. #21 at 10-11) – falls short for a
similar reason. Although the regulations require that an ALJ must obtain an updated opinion
from a medical expert before making a finding of disability based on medical equivalence, there
is no such requirement for decisions of disability based on functional equivalence. See SSR 0914 

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1p, 2009 WL 396031, at *12 (Feb. 17, 2009). Consequently, courts have consistently found that
ALJs are not required to obtain updated medical expert opinions when considering whether a
child’s impairment functionally equals the listings – even in instances when the ALJ feels that
evidence submitted after a consultant reviewed the file would have likely changed the
consultant’s findings. See Tyson v. Comm’r of Soc. Sec., No. 1:16-cv-130, 2017 WL 1130028, at
*4-5 (W.D.Mich. Mar. 27, 2017); Edwards ex rel. L.T. v. Colvin, No. 12 C 7639, 2013 WL
3934228, at *4-5 (N.D.Ill. July 30, 2013); A.H. ex rel. Williams v. Astrue, No. 09 C 6981, 2011
WL 1935830, at *18–19 (N.D.Ill. May 18, 2011).
3.

The ALJ properly considered evidence of Claimant’s improvement
when finding that Claimant had no marked limitation in interacting
and relating with others.

When assessing a claimant’s limitations, “[t]he key is not whether one has improved
(although that is important), but whether they have improved enough to meet the legal criteria of
not being classified as disabled.” Murphy v. Colvin, 759 F.3d 811, 819 (7th Cir. 2014).
Accordingly, “courts have rejected an ALJ’s reliance on improvement alone as a substitute for
analyzing the child’s actual functioning.” Edwards ex rel. L.T. v. Colvin, No. 12 C 7639, 2013
WL 3934228, at *12 (N.D.Ill. July 30, 2013). In this case, Claimant argues that even if the ALJ
were qualified to discount Lowry’s finding without seeking an updated medical opinion, he was
not permitted to discount her opinion based on evidence of Claimant’s improvement without
considering “that improvement is a relative phenomenon.” (Dckt. #21 at 9).
Contrary to Claimant’s assertion, however, the Court finds that the ALJ properly used
evidence of Claimant’s improvement to support his findings. First, the ALJ did not simply note
that Claimant had improved, but explained how that improvement supported a finding that
Claimant was not markedly limited in interacting and relating with others. See Johnson v.

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Colvin, No. 15 C 9737, 2017 WL 219514, at *5 (N.D.Ill. Jan. 19, 2017) (finding that in order to
use improvement as a basis for discounting symptoms, “the ALJ must connect how [the]
improvement restored Plaintiff’s ability to work”). For example, the ALJ noted – citing
Claimant’s December 2014 IEP – that Claimant had “made good progress in the areas of speech
and language” in that his intelligibility had improved, his vocabulary had increased, and he could
understand sentences containing negatives, answer questions about pictures and stories, produce
sentences to describe pictures and events, and answer and ask questions. (R. 900 (citing R.
1194-98)).
The ALJ also avoided the mistake of comparing Claimant’s current abilities only to those
of his past self, as opposed to those of other non-disabled children his own age. Cf. Saracco ex
rel. T.H. Berryhill, No. 15 C 6208, 2017 WL 6039916, at *6 (N.D.Ill. Dec. 6, 2017) (“[A] child
can improve under an IEP and still fall significantly behind non-disabled children her own
age.”). Claimant suggests that certain 2014 IEP findings indicate that, despite his improvement,
he remained markedly limited when compared to other children. However, that IEP made no
explicit finding as to Claimant’s limitations. Asking the Court to infer such a finding amounts to
a request to reweigh the evidence.4 As it is, the ALJ’s citation to the 2014 function report by
Claimant’s mother, which indicated that Claimant had no limitations in his ability to talk or
communicate, (R. 1139-40), as well as the 2015 evaluation by Claimant’s teacher, which also

The Court also notes that an ALJ is not required to discuss every piece of evidence in the record, so long
as he does not “ignore an entire line of evidence that is contrary to the ruling.” Terry v. Astrue, 580 F.3d
471, 477 (7th Cir. 2009). The findings highlighted by Claimant are not explicitly contrary to the ALJ’s
finding that Claimant experiences less than marked limitations in this domain. See Tucker on behalf of
D.R.N. v. Comm’r of Soc. Sec., No. 18-119-E, 2019 WL 2775505, at *1 n.1 (W.D.Penn. July 2, 2019)
(finding an ALJ need not discuss findings that do not “opine specifically as to the limitations [Claimant]
had in the six domains at issue”). Furthermore, the ALJ’s acknowledgement of other potentially
conflicting evidence from the 2014 and 2015 IEP reports assuages any concerns about impermissible
cherry picking.
4

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indicated that Claimant had no limitations in his ability to interact or relate with others, (R.
1161), was sufficient to support his finding that Claimant was less than markedly limited not
only when compared to his prior self, but when compared to other children his own age.
4.

The ALJ adequately explained his finding that Claimant did not have
a marked limitation in this domain for any twelve-month period.

A claimant need not be disabled at the date of his hearing; rather, he qualifies for benefits
if a disability existed for any consecutive twelve-month period during the relevant time frame.
See 20 C.F.R. §404.320(b)(3); Brown v. Massanari, 167 F.Supp.2d 1015, 1017 (N.D.Ill.2001).
Accordingly, an ALJ’s failure to consider a claimant’s limitations during the entire period
between onset and the hearing justifies reversal. See Calhoun v. Colvin, 959 F.Supp.2d 1069,
1075 (N.D.Ill.2013) (remanding where it was “painfully apparent . . . that the ALJ focused
entirely on the asserted absence of a disability as of the date of the Hearing, based in substantial
part on extremely recent evidence”).
Here, Claimant argues that the ALJ did not “sufficiently consider” whether he was
markedly limited in interacting and relating with others for any twelve-month period between the
alleged onset date and the date of the hearing. (Dckt. #21 at 11). In other words, Claimant
suggests that the ALJ erred by failing to consider a closed period of disability. Claimant points
to his October 2011 IEP testing, which found that he had only fifty percent intelligibility, as
supporting a finding that – at least at that point in time – he had a marked limitation in this
domain according to the Consultants’ assessment. He then notes that the evidence the ALJ cited
as demonstrating improvement “was from May 2014, over two and a half years after the October
2011 testing.” (Id.). The inference Claimant would like to draw, then, is that he was markedly
limited from October 2011 through May 2014.

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There are two problems with Claimant’s argument. First, the ALJ explicitly found that
the Consultants’ finding that Claimant had a marked limitation in his interacting and relating to
others was not entitled to any weight. (R. 901). As stated above, this finding was supported by
substantial evidence. See Section III(A)(1), supra. Since the ALJ did not find that Claimant had
a marked limitation in his interacting and relating to others at any point during the relevant time
period, he was not required to consider whether Claimant had such a marked limitation spanning
a twelve-month period.
Second, Claimant’s argument fails to account for the fact that the record lacks any
evidence regarding Claimant’s speech and language impairments between October 2011 and
May 2014. Therefore, even though he had the burden to do so, Claimant cannot point to any
evidence suggesting that his problems with speech and language persisted for at least twelve
months during this period. See Scheck, 357 F.3d at 702 (“It is axiomatic that the claimant bears
the burden of supplying adequate records and evidence to prove their claim of disability.”).
Considering this dearth of contrary evidence, it is enough that the ALJ explicitly acknowledged
his duty to consider whether Claimant had a marked limitation for any twelve-month period
relevant to the application, (R. 901), and considered evidence spanning the entire alleged
disability period. See Marko L. v. Saul, No. 16 C 9723, 2021 WL 843427, at *4 (N.D.Ill. Mar. 5,
2021) (“Plaintiff does not cite any authority stating that the ALJ is required to do any more than
the ALJ did here – consider medical evidence at all relevant times and determine whether
Plaintiff was under a disability at any relevant time.”); Cf. Calhoun, 959 F.Supp.2d at 1075
(remanding where the ALJ “focused entirely on the asserted absence of a disability as of the date
of the Hearing, based in substantial part on extremely recent evidence”).

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5.

The ALJ’s mischaracterizations of the record constitute harmless
errors.

Claimant suggests that the ALJ’s mischaracterization of two pieces of evidence related to
the interacting and relating with others domain requires reversal. The first relates to a function
report completed by Claimant’s mother on July 20, 2011. The ALJ noted that “Claimant was
four months shy of three years of age when his mother completed the functional report” and it
was, therefore, “reasonable that [C]laimant was unable to perform” some of the activities cited
on a form meant for children ages three to six. (R. 899-900). In fact, Claimant was
approximately three years and four months old at the time his mother completed the form.
Claimant argues that this error requires reversal because the mistake prevented the ALJ from
comparing Claimant’s abilities to those of non-disabled children his own age. (Dckt. #21 at 8).
The Court agrees that the ALJ made a mistake regarding Claimant’s age, but finds that the error
was harmless. See Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013) (“[W]e will not remand
a case to the ALJ for further explanation if we can predict with great confidence that the result on
remand would be the same.”).
The function report prepared by Claimant’s mother would not translate to a finding that
Claimant had marked limitations in this domain even if Claimant were assessed as a three-yearold. As the ALJ noted, the report indicated that Claimant could take part in conversations with
other children and ask for what he wants. (R. 159, 900). It also indicated that Claimant could
speak clearly and was understood most of the time by people who knew him well, as well as
people who did not. (R. 158, 899). These facts support a finding that Claimant, then a
preschool-age child, did not have marked limitations in interacting and relating with others at the
time the function report was completed. 20 C.F.R. §416.926a(i)(2)(iii) (a preschooler without an

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impairment should be able to speak clearly enough that both familiar and unfamiliar listeners can
understand what he says most of the time); SSR 09-5P, 2009 WL 396026, at *6 (same).
The ALJ also misstated the record when he asserted that Claimant “no longer required
speech therapy after October 2011.” (R. 900). Indeed, an IEP report from October 2011
specifically recommended that Claimant receive speech and language services. (R. 687).
However, this appears to be a mere scrivener’s error, as the ALJ specifically cited the same
report’s therapy recommendations elsewhere in his analysis. (R. 899). Furthermore, this error
was harmless. The ALJ explicitly acknowledged the fact that Claimant continued to have
challenges in the area of speech and language which continued to impact his communications
through December 2015. (R. 900). The ALJ also took Claimant’s speech and language
difficulties into account when finding that Claimant had a less than marked (as opposed to no)
limitation in interacting and relating with others. (R. 899).
B.

The ALJ properly considered Claimant’s ability to move about and
manipulate objects.

The domain of moving about and manipulating objects relates to a child’s gross and fine
motor skills. 20 C.F.R. §416.926a(j). The ALJ considers how a child moves his body from one
place to another and how a child moves and manipulates things. Id. In this case, the ALJ found
that Claimant had a less than marked limitation in this domain. In support of this finding, the
ALJ cited extensive records indicating that Claimant could engage in a wide range of physical
activities. Most notably, he cited the findings of three state agency consultants who concluded
that Claimant was not markedly limited in this area. (R. 903). Nonetheless, Claimant asserts
that the ALJ’s analysis of this domain was improper because he failed to adequately consider the
ways in which Claimant was limited while wearing his back brace, which he had been directed
to wear twenty-three hours per day. (R. 445).
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Claimant correctly asserts that an ALJ must consider motor limitations caused by a
child’s impairments as well as those caused by “medications or other treatments.” SSR 09-6p,
2009 WL 396028, at *2. Contrary to Claimant’s assertion, however, the Court finds that the ALJ
adequately assessed the impairments caused by Claimant’s brace. The ALJ noted that Claimant
experienced “ongoing limitations” from the back brace, but cited a 2011 IEP report indicating
Claimant found “ways to work around” it. (R.903) (citing R. 691). The ALJ also cited a 2013
physical therapy finding that, due to Claimant’s “functional independence in accessing all areas
of his educational environment,” he no longer qualified for educationally relevant physical
therapy. (R. 902) (citing R. 1195).
Nonetheless, Claimant faults the ALJ for failing to consider his limitations while wearing
his brace. However, other than the 2011 IEP report referenced above and the testimony of
Claimant and his mother (which the ALJ did not error by discounting, see Section III(C), infra),
Claimant points to no evidence that limitations stemming from his brace exist. When the ALJ
asked Claimant’s counsel to share medical findings regarding how Claimant is limited while
wearing the brace, Claimant’s counsel did not identify any such findings. (R. 949-952). The
ALJ informed counsel that, without such evidence, it would be difficult for him to find that
Claimant had a marked limitation in this domain. (R. 949-951). Notwithstanding the ALJ’s
admonition and the fact that the record was left open for one week following the hearing, (R.
972), counsel did not submit any additional evidence regarding Claimant’s limitations while
wearing the back brace.
C.

The ALJ’s evaluation of the subjective complaints of Claimant and
Claimant’s mother was not patently wrong.

Claimant finally argues that the ALJ’s decision to discount the subjective complaints of
Claimant and his mother was improper. (Dckt. #21 at 14). The Court finds otherwise. An
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ALJ’s evaluation of subjective symptoms will be upheld unless it is patently wrong. Shideler v.
Astrue, 688 F.3d 306, 310-311 (7th Cir. 2012). To be patently wrong, the decision must lack
“any explanation or support.” Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008). Claimant
bears the burden of demonstrating that the ALJ’s subjective symptom evaluation met this
standard. See Horr v. Berryhill, 743 Fed.Appx. 16, 20 (7th Cir. 2018).
Here, the ALJ discounted the allegations of Claimant’s mother in part based on the
inconsistency of her testimony with the record. At the August 12, 2016 hearing, Claimant’s
mother testified that Claimant had not been wearing his brace for six months. (R. 958). But as
the ALJ observed, a January 21, 2016 treatment note indicated that Claimant had not been
wearing his brace for at least eight months longer than his mother testified. (R. 1612).
Claimant argues that the ALJ’s subjective symptoms assessment was insufficient because
he “did not explore this degree of inconsistency further.” (Dckt. #21 at 14) (citing Beardsley v.
Colvin, 758 F.3d 834, 838 (7th Cir. 2014) (“[W]ithout some attempt by the ALJ to explore the
supposed contradictions here, they do not provide a sound basis for concluding that [the
claimant’s] report was inaccurate.”)). Beardsley is distinguishable, however, because the ALJ in
this case did inquire further as to the reason for this inconsistency.
During the testimony of Claimant’s mother, the ALJ noted that the difference between
her testimony and the January 2016 treatment note was “pretty significant,” and asked
Claimant’s counsel to explain how this lengthy lack of compliance with treatment was consistent
with the degree of limitation alleged. (R. 960). Claimant’s counsel offered no explanation as to
the inconsistent testimony. (R. 961). The ALJ then reiterated his concern, stating, “the mother
of the claimant gives me testimony, which seems to be directly inconsistent with what I . . . see
in the record, I’m trying to figure out, again, how do I rely on that?” (R. 962). Claimant’s

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counsel again failed to address the inconsistency. Because the ALJ gave Claimant’s counsel
multiple opportunities to explore this contradiction and because counsel failed to provide any
explanation, the ALJ did not error by discounting the testimony of Claimant’s mother. Indeed,
courts have upheld subjective symptom evaluations based on more “minor discrepancies.” See,
e.g., Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013) (upholding an ALJ’s subjective
symptom evaluation where the ALJ discounted the credibility of a claimant who “initially
reported that she did some cooking but at the hearing testified that she did no household
chores”); Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000) (holding that the hearing officer’s
evaluation of mildly inconsistent testimony, coupled with his observations of the claimant at
trial, was sufficient to avoid remand under the “patently wrong” standard).
Claimant also argues that the ALJ misrepresented the testimony of Claimant’s mother by
“implying that she had not bothered to send an order for a new brace to her insurance company
until the day before the hearing.” (Dckt. #21 at 14). Indeed, when assessing Claimant’s
mother’s testimony, the ALJ wrote that “[a]lthough [Claimant’s mother] observed that his curve
is getting worse it was not until the day before the hearing that she eventually sen[t] orders to the
insurance for a brace.” (R. 894). Claimant notes that his mother explained to the ALJ that she
had sent an order to her insurance provider for a new brace earlier, but had been informed that
she needed a “letter of necessity” from Claimant’s doctor. She testified that, due to the doctor’s
lengthy waitlist, she had been unable to secure the letter until the day before the hearing. (R.
958-59). Claimant also points to a 2016 doctor’s note, which indicated that Claimant had lost his
insurance and, therefore, had not visited the orthopedic or neurosurgery clinics for a year. (R.
1611).

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The Court agrees that the ALJ should have elaborated on these reasons for delayed
treatment if he intended to use the delay when discounting the testimony of Claimant and his
mother. See Craft, 539 F.3d at 679 (finding inability to afford treatment may be considered a
good reason for non-compliance); SSR 82-59 *2 (S.S.A.), 1982 WL 31384 (“[A]ppropriate
development must be made to resolve whether the claimant . . . is justifiably failing to undergo
the treatment prescribed.”). This error, however, does not require remand because the ALJ gave
multiple valid reasons for discounting the credibility of Claimant and his mother. See (Dckt. #23
at 9-10) (citing to the ALJ’s decision (R. 893-906) and listing multiple reasons); Halsell v.
Astrue, 357 Fed.Appx. 717, 722-23 (7th Cir. 2009) (“Not all of the ALJ’s reasons [for
discounting symptom allegations] must be valid as long as enough of them are.”) (emphasis in
original); McKinzey, 641 F.3d at 890-91 (finding that the ALJ’s credibility determination was not
patently wrong even though it “was not without fault” because two of the three reasons for
discounting claimant’s credibility were invalid where the third reason was valid); Woodsum v.
Astrue, 711 F.Supp.2d 1239, 1262 (W.D.Wash. 2010) (“merely because one reason the ALJ gave
for discounting [plaintiff’s and Claimant’s] credibility was not proper does not render the ALJ’s
credibility determination invalid, as long as it is supported by substantial evidence.”).

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CONCLUSION
For the foregoing reasons, Claimant’s motion for summary remand, (Dckt. #21), is
denied and the Commissioner’s motion for summary judgment, (Dckt. #22), is granted. The
decision of the ALJ is affirmed.
ENTERED: September 19, 2022

______________________
Jeffrey I. Cummings
United States Magistrate Judge

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