Biggs v. Commissioner of Social Security
OPINION AND ORDER: The Court hereby GRANTS in part the relief sought in Plaintiffs Opening Brief 23 and REMANDS the decision of the Commissioner of the Social Security Administration. The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Plaintiff and against Defendant. Signed by Magistrate Judge Joshua P Kolar on 9/15/2022. (shk)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
AMY BIGGS on behalf of DKGB,
KILOLO KIJAKAZI, Acting Commissioner of )
CAUSE NO.: 1:21-CV-97-JPK
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], and Plaintiff’s Opening Brief [DE
23]. Plaintiff Amy Biggs, on behalf of her daughter, minor claimant DKGB, requests that the July
14, 2020 decision of the Administrative Law Judge (ALJ) denying her claims for disability benefits
be reversed. For the following reasons, the Court grants Plaintiff’s request and remands to the
agency for further proceedings.
On February 11, 2019, Plaintiff applied for supplemental security income on behalf of
DKGB, alleging that DKGB had been disabled since her birth in 2009. Plaintiff’s application was
denied initially and on reconsideration. Plaintiff requested a hearing, which was held before an
Administrative Law Judge (ALJ) on May 4, 2020. On July 14, 2020, the ALJ issued an unfavorable
decision, making the following findings 1:
The claimant was born [in 2009]. Therefore, she was a school-age child on
February 11, 2019, the date [the] application was filed, and is currently a schoolage child.
The claimant had not engaged in substantial gainful activity since February
11, 2019, the application date.
These findings correspond to the bolded findings throughout the ALJ’s decision. Internal citations to the Code of
Federal Regulations are omitted.
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The claimant has the following severe impairments: epilepsy/seizure
disorder, attention deficit hyperactivity disorder (ADHD), anxiety disorder,
impulse control disorders, gliomas, neurofibromatosis type I, and headaches.
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1.
The claimant does not have an impairment or combination of impairments
that functionally equals the severity of the listings.
…[T]he claimant has not been disabled, as defined in the Social Security
Act, since February 11, 2019.
(AR 16-24) 2.
Plaintiff appealed, but the Appeals Council denied review. (AR 1-3). Plaintiff then filed
this civil action seeking review of the Agency’s decision pursuant to 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the agency’s final decision. 42 U.S.C.
§ 405(g). The question before the Court is not whether the claimant is in fact disabled, but whether
the ALJ’s decision “applies the correct legal standard and is supported by substantial evidence.”
Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017); 42 U.S.C. § 405(g). Under § 405(g), the
Court must accept the Commissioner’s factual findings as conclusive if they are supported by
substantial evidence, which is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Page numbers in the Administrative Record (AR) refer to the page numbers assigned by the filer, which are found
on the lower right corner of the page, and not the page numbers assigned by the Court’s CM/ECF system.
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The Court reviews the entire administrative record but does not re-weigh the evidence,
resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See McKinzey v. Astrue,
641 F.3d 884, 890 (7th Cir. 2011) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th
Cir. 2003)). However, “if the Commissioner commits an error of law,” the Court may reverse the
decision “without regard to the volume of evidence in support of the factual findings.” White v.
Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir.
1997)). At a minimum, an ALJ must articulate her analysis of the evidence to allow the reviewing
court to trace the path of his reasoning and to be assured that the ALJ considered the important
evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). The ALJ also has a basic
obligation to develop a full and fair record and “must build an accurate and logical bridge between
the evidence and the result to afford the claimant meaningful judicial review of the administrative
findings.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014).
To be considered disabled, a child must have a “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)(1). To evaluate claims for supplemental security income, the
Commissioner looks to whether the minor claimant has a medically determinable severe
impairment or combination of impairments that meets, medically equals, or functionally equals
the requirements of an impairment listed in the regulations. Id.; 20 C.F.R. § 416.926a(a).
In this case, Plaintiff specifically objects to the ALJ’s analysis of functional equivalence.
To assess functional equivalence, the ALJ evaluates six different domains of functioning:
acquiring and using information, attending and completing tasks, interacting and relating with
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others, moving about and manipulating objects, caring for oneself, and health and physical wellbeing. Id. To be found disabled, the claimant must have an “extreme” limitation in one domain or
a “marked” limitation in two domains, relative to the agency’s expectations for children in the
claimant’s age group. Id.
DKGB was a “school-age child” (aged 6-12) from the date of the application through the
date of the ALJ’s decision. (AR 16). The ALJ found that DKGB suffered from seizures, anxiety,
ADHD, impulse control disorders, and headaches, among other ailments. Id. The ALJ found that
she did not meet or medically equal any of the applicable listings (AR 16-17), and Plaintiff does
not challenge that finding. Next, the ALJ considered whether DKGB’s impairments could
functionally equal a listing, by assessing each of the six domains. The ALJ found that DKGB had
a “marked” limitation in health and physical well-being, “no limitation” in interacting and relating
with others, and “less than a marked limitation” in the remaining four domains, compared to other
children in the same age range.3 (AR 19). Because there were no extreme limitations, and fewer
than two marked limitations, the ALJ found DKGB not disabled. Plaintiff contests the ALJ’s
finding in the domain of “caring for yourself,” arguing that DKGB has at least a “marked”
limitation, which would have compelled a finding of disability.
“Caring for Yourself”
The domain of caring for yourself measures “how well you maintain a healthy emotional
and physical state, including how well you get your physical and emotional wants and needs met
in appropriate ways; how you cope with stress and changes in your environment; and whether you
A “marked” limitation means the “impairment interferes seriously with your ability to independently initiate, sustain,
or complete activities . . . the equivalent of the functioning we would expect to find on standardized testing with scores
that are at least two, but less than three, standard deviations below the mean.” An “extreme” limitation is the equivalent
of three or more standard deviations below the mean. § 416.926a(e)(2)-(3).
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take care of your own health, possessions, and living area.” § 416.926a(k). For school-age children,
such as DKGB, the agency describes “typical” functioning as follows:
You should be independent in most day-to-day activities (e.g., dressing yourself,
bathing yourself), although you may still need to be reminded sometimes to do
these routinely. You should begin to recognize that you are competent in doing
some activities and that you have difficulty with others. You should be able to
identify those circumstances when you feel good about yourself and when you feel
bad. You should begin to develop understanding of what is right and wrong, and
what is acceptable and unacceptable behavior. You should begin to demonstrate
consistent control over your behavior, and you should be able to avoid behaviors
that are unsafe or otherwise not good for you. You should begin to imitate more of
the behavior of adults you know.
Having summarized the medical evidence, reports from DKGB’s school, and the testimony
of DKGB and her mother, the ALJ found that DKGB had less than a marked limitation in caring
[DKGB] testified she has sloppy handwriting and trouble spelling. She reported
being able to tell time on a digital clock and spell short words. She reported being
able to add and subtract. She said she finishes her homework. The claimant stated
it is hard for her to keep up when walking or running. She said she can kind of
throw a ball. She denied participating in sports and said she could not ride a bike,
does not jump rope, does not swim, and does not dance. She indicated she can hold
a pencil but uses a gripper to help her write neater. She said she needs help bathing.
She indicated she cannot wash her hair. She reported being able to use utensils,
scissors, zippers, buttons, and shoelaces. The claimant’s mother reported she is
physically slow and has to hold onto something when climbing stairs. However, the
claimant’s doctor allowed her to play on playground equipment with stairs and a
railing, swim with one on one supervision, and skateboard or cycle with a helmet.
The claimant has trouble with anxiety and picking at her skin, but medication
helped. Neuropsychologist Elizabeth Begyn, Ph.D. noted the claimant appeared sad
and did not demonstrate much expression in her face. However, the claimant was
well groomed and appropriately dressed. In an August school report, the claimant’s
biggest struggle was organization. The claimant’s teacher noted in September 2019
the claimant was functioning in school, was very polite, was a great kid, worked
hard, and had a good heart. The claimant’s teacher stated she was able to stop crying
if she takes a moment to talk about her problems, and crying was not impeding her
functioning at school.
(AR 22-23 (internal citations omitted)).
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Earlier in the decision 4, the ALJ had discussed DKGB’s history of “pick[ing] at her skin,”
resulting in bleeding and bruises. The ALJ found that the frequency of the skin picking varied over
time, but ultimately, “[w]ith medication changes, the claimant’s anxiety and skin picking improved
by December 2019.” (AR 22).
Plaintiff argues that many of the ALJ’s findings are not relevant to DKGB’s self-care. (Pl.
Br. 19-22). For example, the ALJ recited much of DKGB’s testimony about her performance at
school (sloppy handwriting, trouble spelling, but able to add and subtract, and finish her
homework) and her physical abilities (could not jump rope, swim, or dance, but could use utensils,
scissors, zippers, buttons, and shoelaces). (See AR 22-23). Although the ALJ did not explain their
relevance, these findings could show that DKGB “recognize[d] that [she was] competent in doing
some activities and [had] difficulty with others,” which is an element of self-care for children her
age. See § 416.926a(k)(2)(iv). Even if this discussion was not directly on point, it does not appear
that the ALJ made any improper inference about DKGB’s self-care from those findings.
More directly relevant was DKGB’s testimony that she “needs help bathing” and “cannot
wash her hair.” The regulations state that a school-age child should be able to bathe independently.
§ 416.926a(k)(2)(iv). The ALJ did not discuss the bathing problem in any greater detail, but noted
that DKGB appeared “well groomed and appropriately dressed” at an appointment with a
neuropsychologist (AR 23 citing AR 1008). However, there was no indication that DKGB had
groomed herself independently for this appointment; if this was note was seen as inconsistent with
DKGB’s testimony, the ALJ did not explicitly say so.
The findings of the six domains overlap somewhat, and the Court considers all relevant findings throughout the
decision in assessing whether the findings about “caring for yourself” were adequately explained. See Wright on behalf
of IRC v. Kijakazi, No. 3:19-CV-841-TLS, 2022 WL 1090629, at *3 (N.D. Ind. Apr. 12, 2022) (citing Rice v. Barnhart,
384 F.3d 363, 370 n.5 (7th Cir. 2004) (“it would be a needless formality to have the ALJ repeat substantially similar
factual analyses” in different parts of the decision)).
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The bathing issue is not dispositive in itself: a failure to bathe yourself “do[es] not
necessarily describe a ‘marked’ or ‘extreme’ limitation.” § 416.926a(k)(3). Put differently, not
every school-age child with bathing issues is “operating two . . . standard deviations below the
mean.” § 416.926a(e)(2). Perhaps the ALJ believed DKGB’s bathing and grooming were better
than she portrayed them5, but the decision did not explain that. It is not clear why DKGB’s bathing
difficulties supported a “less than marked” limitation in self-care, rather than a more severe
limitation. Giles ex rel. Giles v. Astrue, 483 F.3d 483, 488 (7th Cir. 2007) (“We require an
explanation of why strong evidence favorable to the plaintiff is overcome by the [contrary]
The ALJ’s analysis of Plaintiff’s “skin picking” behavior was also lacking and requires
remand. The regulations explicitly recognize that “self-injurious behavior” is a limitation on selfcare. § 416.926a(k)(3)(iv); see also § 416.926a(k)(2)(iv) (at age 6-12, “[y]ou should begin to
demonstrate consistent control over your behavior, and you should be able to avoid behaviors that
are unsafe or otherwise not good for you”). The ALJ acknowledged that DKGB was “picking at
her skin,” which at various times caused bruising and bleeding, but this underplayed the extent of
the problem. DKGB was reported to “pick on her moles, stating that she does not like her moles
on her skin” (AR 330); bite her fingernails and toenails (AR 334); “dig” at her ears (AR 444); and
try to cut her legs and arms with scissors (AR 1037).
The ALJ found that “with medication changes, the . . . skin picking improved by December
2019,” citing generally to a psychiatrist’s treatment notes. (AR 22 citing AR 439-466). Those notes
show that, on December 3, 2019, DKGB “report[ed] that the picking on her skin has gone down.
Neither Plaintiff’s brief nor the ALJ’s decision referenced DKGB’s mother’s testimony that DKGB “loses control
of her bladder” during seizures (AR 45), which could be seen as another potential limitation on her self-care. See §
416.926a(k)(1)(ii) (“Caring for yourself includes using your independence and competence to meet your physical
needs, such as . . . toileting . . . appropriately for your age.”).
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She is also not picking at her scabs as much, but she still does this when she is anxious.” (AR 455).
In February 2020, she was “not pick[ing] at her skin as much, but she still pick[ed] at her fingertips
and toenails.” (AR 461). Her mother testified at the May 4, 2020 hearing that the skin, fingernail
and toenail picking was ongoing. (AR 44 (“It seems like every day, she’s doing it.”)).
Despite the testimony of DKGB’s mother, the ALJ’s statement that the problem had
improved was supported by the medical record. However, even the most charitable reading of the
record suggests that the problem was still ongoing, just less than before. (See AR 455, 461). The
ALJ seemed to assume that, because DKGB’s condition was improving, it was not a marked
limitation on her self-care. But the question is not whether DKGB was improving, but how she
was functioning relative to other children her age. Michelle J. o/b/o ZAJ v. Comm’r of Soc. Sec.,
No. 3:21-CV-00178-NJR, 2022 WL 3153967, at *6 (S.D. Ill. Aug. 8, 2022) (“The ALJ believed
ZAJ’s accommodations, therapy, and treatment were helping her to improve, but failed to describe
what this meant for ZAJ’s functioning relative to her non-disabled peers.”); Oliver on behalf of
D.O. v. Kijakazi, No. 20 C 4982, 2021 WL 5299788, at *6 (N.D. Ill. Nov. 15, 2021) (“Despite any
improvement that D.O. exhibits when he is on medication, the ALJ did not explain how D.O. has
reached the level of function that a non-impaired child of his age range should have in this
Finally, the ALJ summarized a teacher’s report as saying that DKGB “was functioning in
school, was very polite, was a great kid, worked hard . . . had a good heart . . . and was able to stop
crying if she takes a moment to talk about her problems.” (AR 23). Although there is no record
citation, it appears the ALJ was referring to the report of a meeting regarding DKGB’s Section
504 Plan (AR 961-62). If so, the ALJ’s description was not exactly right – the teacher did not say
that DKGB would stop crying, only that “she is usually able to process the situation” and
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eventually move onto the next task if a teacher consoles her. (AR 961). The school staff also sought
to address DKGB’s “fidgety” behavior by putting Velcro under her desk to give her an alternative
to picking her skin. (See AR 962 (“If this works as a replacement behavior, we can keep it. If not,
we can try something new.”)). These accommodations are themselves evidence of DKGB’s
limitations. See SSR 09-1p, 2009 WL 396031, at *7 (Feb. 17, 2009) (“The more help or support
of any kind that a child receives beyond what would be expected for children the same age without
impairments, the less independent the child is in functioning, and the more severe we will find the
limitation to be.”). The fact that DKGB could “function” in school with help, while relevant, does
not show she was capable of age-appropriate self-care. § 416.926a(b)(7)(iv) (“The fact that you
attend school does not mean that you are not disabled . . . [G]ood 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.”). Therefore, on remand, the ALJ needs to not just list the
instances where DKGB performed well, but also explain why that evidence does or does not
outweigh the evidence of her limitations. See Pamela B. v. Saul, No. 2:20-CV-340, 2021 WL
2411391, at *5 (N.D. Ind. June 14, 2021) (“[T]he ALJ summarized evidence both in support of
and against a finding of disability. However . . . the ALJ was required to explain why evidence of
normal findings were more probative than evidence supporting a finding of disability.”).
“Interacting and Relating with Others”
Although not addressed in Plaintiff’s brief, the Court believes it may be wise for the ALJ
to reassess the domain of “interacting and relating with others” on remand. Interacting and relating
with others means “how well you initiate and sustain emotional connections with others, develop
and use the language of your community, cooperate with others, comply with rules, respond to
criticism, and respect and take care of the possessions of others.” § 416.926a(i). The ALJ found
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that Plaintiff had “no limitation” in this area. (AR 23). But DKGB testified that she did not have
any friends (AR 34, see also AR 307). She cried frequently at school (AR 961), and was “anxious
in the classroom [because] everyone is sitting to[o] close to each other.” (AR 325). She was
reported to bully, yell, and become aggressive with other children. (AR 305-06). In her school
records, a guidance counselor claimed that DKGB’s mother “reported that doctors changed
[DKGB’s] seizure medication because she was threatening” to harm another child. (AR 1037).
In finding that DKGB had “no limitation” in interacting and relating with others, the ALJ
relied heavily on reports that she presented well in examinations with various doctors. 6 But normal
behavior for a brief period in a controlled setting such as a doctor’s appointment is not necessarily
probative of how a person will behave for the rest of the day. See, e.g., Kangail v. Barnhart, 454
F.3d 627, 629 (7th Cir. 2006) (finding “no contradiction” between reports of a claimant’s mental
illness and the observation “that she was behaving pretty normally during her office visits”); see
also Miles ex rel. J.M. v. Astrue, 775 F. Supp. 2d 715, 729 (S.D.N.Y. 2011) (the fact that a child
“was described as cooperative and polite” with adults was not probative as to interacting and
relating with others). The ALJ did note that DKGB had a “peer helper” at school and was able to
talk to her teachers. (AR 23). But these facts do not constitute a logical bridge to the conclusion
that DKGB had no limitation in interacting and relating with others. On remand, the ALJ should
re-assess the evidence and provide a clearer explanation for the findings in that domain.
See AR 23 (“At a February 2019 Park Center examination, the claimant reported difficulty in public places but was
cooperative during the examination. At a Riley Hospital examination that same month, the claimant was cooperative,
very pleasant, and interactive.” . . . “[Another] examiner described the claimant as sweet and socially related, indicated
she readily participated in the interview, was engaged, cooperative, and interactive, and had good eye contact.” . . .
“[A neurologist reported DKGB] was concrete for her age but was otherwise socially appropriate.”) (internal citations
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Based on the foregoing, the Court hereby GRANTS in part the relief sought in Plaintiff’s
Opening Brief [DE 23] and REMANDS the decision of the Commissioner of the Social Security
Administration. The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of
Plaintiff and against Defendant.
So ORDERED this 15th day of September, 2022.
s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT
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