Lehman v. Commissioner of Social Security

Filing 27

OPINION AND ORDER: The decision of the Commissioner of Social Security is REVERSED pursuant to Sentence Four of 42 U.S.C. § 405(g) and this case is REMANDED for further proceedings consistent with this Opinion and Order. Clerk DIRECTED to term this case and enter judgment in favor of Plaintiff Kathaleen Lehman and against Defendant Commissioner of Social Security. Signed by Magistrate Judge Michael G Gotsch, Sr on 1/31/17. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KATHALEEN LEHMAN,
for her minor child, A.L.,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CAUSE NO. 3:15-CV-00318-MGG

OPINION AND ORDER
Plaintiff Kathleen Lehman on behalf of her minor child, (“A.L.”) filed her complaint in
this Court seeking a reversal of the Social Security Commissioner’s final decision denying her
application for disability benefits under Title II of the Social Security Act. Alternately, Lehman
seeks a remand for further consideration of her application. On January 11, 2016, Lehman filed
her opening brief. Thereafter, on April 16, 2016, the Commissioner filed a responsive
memorandum asking this Court to affirm the decision denying A.L. benefits. Lehman filed her
reply brief on May 2, 2016. This Court may enter a ruling on this matter based on the parties’
consent pursuant to 28 U.S.C. § 636(b)(1)(B) and 42 U.S.C. § 405(g).
I.

PROCEDURE
On July 22, 2004, Lehman applied for A.L.’s disability benefits. On May 22, 2008, A.L.

was found disabled starting March 6, 2008. On February 16, 2012, during a continuing disability
review pursuant to 20 C.F.R. § 404.1590, the Social Security Administration (“SSA”) found that
A.L. was no longer disabled.

On March 28, 2013, a disability hearing officer reviewed the agency’s decision, and
determined that A.L.’s health had improved and concluded that her disability ended on February
16, 2012. A.L. then requested a hearing before an administrative law judge (“ALJ”).
On October 24, 2013, Lehman and A.L. appeared at an administrative hearing in Elkhart,
Indiana. A.L. was not represented by counsel. The ALJ issued a decision on February 28, 2014,
finding that A.L.’s disability ceased on February 16, 2012. The Appeals Council denied A.L.’s
request for review. Through this action Lehman seeks judicial review of the Commissioner’s
final decision pursuant to 42 U.S.C. § 405(g).
II.

RELEVANT BACKGROUND
A.L. was born on September 9, 2000, making her seven years old when she was

originally found disabled in May 2008. A.L. met Listing 112.11, the Listing for Attention
Deficit Hyperactivity Disorder (“ADHD”) and had speech and language delays. A.L. was
thirteen years old at the time of the administrative hearing that resulted in the Agency’s
determination that her disability ended in 2012.
A.

Plaintiff’s Testimony

At the hearing before the ALJ, A.L. and Lehman testified regarding A.L.’s condition.
A.L. testified that she takes medications for ADHD and bipolar disorder. A.L. further stated that
she gets A’s and B’s in school but struggles with reading. Lehman testified that A.L. had to
repeat the first grade and is currently in special education classes. Additionally, Lehman testified
that A.L. has a hard time learning new things, has few friends, and rarely listens and responds to
rules given by adults. Lehman stated that A.L. mostly does not complete homework assignments
because she does not understand it. She also states that the ADHD and bipolar medications
sometimes work on A.L., allowing her to focus on tasks, but sometimes they do not.

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B.

Medical Evidence

As part of A.L.’s disability review in 2013, Lehman provided the ALJ with medical
evidence from February, 2012, to May, 2013. The evidence included the report from a
psychological examination of A.L. conducted in 2012 by Carole Evans, the school’s
psychologist at Woodland Elementary School. Ms. Evans reported that A.L. did not have trouble
getting along with other children and that she did not hesitate to join in play with a group of
children. The psychological exam conducted by Ms. Evans noted objective observations of A.L.
helping or assisting other students, and having a readily established rapport that was easily
maintained, and as working “diligently” on all tasks presented. Ms. Evans also performed
WISC-IV and Woodcock-Johnson-II cognitive tests on A.L. that showed cognitive ability within
borderline range of intellectual functioning, with possibility of difficulty in keeping up with
peers in situations that require age-appropriate thinking and reasoning ability and a low range
ability to sustaining attention, concentration and ability to exert mental control. Ms. Evans
summarized A.L.’s psychological exam by noting “mild” cognitive disability.
In addition, A.L.’s teachers completed multiple teacher questionnaires. In 2008, the
teacher questionnaire submitted in support of A.L.’s original application for disability benefits,
indicated that A.L. had prominent difficulty with acquiring information, task completion,
interaction with others, and caring for herself. In 2012, A.L.’s teachers completed a
questionnaire that reported a serious problem with acquiring and using information, no more than
slight problems with task completion or interaction with others, and no problems with
manipulating objects or caring for herself. Teachers reported that A.L. received more or less
average grades, got along with her teachers and obtained honor roll “a few times.”[DE 12 at
201–12, DE 12 at 272–74, DE 12 at 422–45]. In addition, A.L.’s teachers reported that A.L.

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liked to please others, had great school attendance, enjoyed interaction with others, and was
respectful, pleasant, and able to follow school rules when interacting with school personnel.
In January 2012, A.L. visited her treating physician, Dr. Kauffman, at Oaklawn
Psychological Center (“Oaklawn”). Dr. Kauffman’s report described A.L. as pleasant, redirectable, within normal limits as to speech, thought, content, judgment, memory, language,
fund of knowledge, mood, and affect, and without increased risk as to impulsivity as to home or
school. In April, 2012, a report indicated “much improved symptoms with all levels in the area
of never or occasionally occurring.” [DE 12 at 456–57]. The report further described A.L. as
alert, oriented, retaining non-pressured speech, good articulation, logical thought process, intact
memory, adequate attention, good concentration, high tolerance for distractibility, language
within normal limits, and an adequate fund of knowledge with average intelligence. Also, the
report stated that A.L. was normal as to mood, she was goal oriented, she was without
psychomotor activity or medication side effects, and she was within normal limits as to
appearance. The treating physician assigned a GAF score of 56. 1 In January 2012, A.L. achieved
a full scale IQ score of 70 and a verbal comprehension score of 69. 2
A.L. also returned to Oaklawn in May 2013. During that visit, the report noted few
incidents of not paying attention to details, no new problems at school, and no behavioral issues.
A.L. was found to be oriented, attentive, interactive, talkative, spontaneous, appropriate as to
dress, age appropriate as to associations, normal as to mood, and without involuntary motor

1

Children’s Global Assessment Score (C-GAS) is a 100- point rating scale measuring psychological, social and
school function for children aged 6-17. It was adapted from the Adult Global Assessment Scale and can be found in
the Diagnostic and Statistical Manual of Mental Disorders 4th Ed.
2
Intelligence Quotient (IQ) is a score obtained by dividing a person’s mental age score, obtained by administering
an intelligence test, by the person’s chronological age, both expressed in terms of years and months. The resulting
fraction is multiplied by 100 to obtain the IQ score. National Council on Measurement in Education. Verbal
comprehension score measures a child’s ability to access his vocabulary, express themselves in a meaningful
manner, and apply reasoning skills to information presented verbally. Id.

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movements or medication side effects. She once again was assigned a GAF score of 56.
Oaklawn visits from July, August, and October 2013 reported similar findings.
A.L. also underwent three state agency requested consultative psychiatric examinations.
Cognitive testing during her first consultation psychiatric exam in January 2012 by Dr. Wax,
Ph.D. showed that A.L. was at the bottom of the borderline range of cognitive functioning. Dr.
Wax noted diagnoses as to bipolar disorder and borderline intellectual functioning and assigned
GAF score of 53. Dr. Wax stated that the claimant was “not at all symptomatic for ADHD, that
A.L. retains borderline cognitive functioning, that she appears age-appropriate as to self-care,
and that her socialization and recreation appear adequate.” [DE 12 at 442–44].
A.L. underwent her second consultative psychiatric examination on February 15, 2012,
by Stacia Hill, Ph.D. Dr. Hill opined that A.L. retained limitations related to attending and
completing tasks, moving about and manipulating objects, and health and physical wellbeing.
Based on A.L.s third consultative psychiatric exam on November 1, 2012, Ann Lovko,
Ph.D. concluded that A.L. was cooperative, alert, oriented, social, and has friends.
C.

The ALJ’s Determination

After the hearing, the ALJ issued a written decision reflecting the following findings
based on the three-step continuing disability review process prescribed in the SSA regulations.
See 20 C.F.R. § 416.994a(b). At Step One, the ALJ must determine whether medical
improvement had occurred in the impairments that the claimant had at the time of the most
recent medical determination that she was disabled (i.e., the comparison point decision
(“CPD”)). Medical improvement is any decrease in the medical severity of the impairment that
was documented at the CPD. Here, the ALJ determined there was improvement and proceeded
to Step Two.

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At Step Two, the ALJ must determine if the claimant’s CPD impairments now meet or
medically equal the same Listing that it met or medically equaled at the time of the CPD. Here,
the ALJ determined that since February 16, 2012, the impairments that A.L. had at the time of
the CPD have not met or medically equaled the Listing at the time of the CPD.
At Step Three, the ALJ must determine if the claimant is currently disabled under the
rules, considering all the impairments that the claimant has now, including any non-present or
not considered at the CPD. The ALJ must determine whether the claimant has a medically
determinable severe impairment or a combination of impairments that is severe. If the claimant
has severe impairments the ALJ must determine if her impairments meets or medically equals
the severity of any impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. If the ALJ
finds that the claimant does not meet or medically equal a Listing, the ALJ must determine if the
claimant’s impairments functionally equal a Listing. If the ALJ determines the claimant does not
functionally equal a Listing, the claimant’s disability has ended. 20 C.F.R. § 416.994a(b)(3)(iii).
At Step Three, the ALJ determined that A.L. was no longer disabled.
In reaching these overarching conclusions, the ALJ found that A.L.’s medically
determinable impairments could reasonably be expected to produce the symptoms she alleged,
but, that Lehman’s statements concerning the intensity, persistence and the limiting effects of
A.L.’s symptoms are not credible for the period since February 16, 2012. Lehman reported to
Woodland Elementary School that A.L. suffered from a depressed mood, impulsivity,
hyperactivity, temper tantrums, anxiety/worry, self-injurious behavior, and forgetfulness. The
ALJ found inconsistencies between A.L’s and Lehman’s testimony. Thus the ALJ afforded little
weight to Lehman’s subjective complaints. The ALJ, noted marked limitation in A.L.’s ability to
acquire and use information. The ALJ concluded that A.L. did not have an impairment at the

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CPD and did not develop any additional impairments subsequent to the CPD to functionally
equal any Listing.
III.

ANALYSIS
A.

Standard of Review

The Social Security Act authorizes judicial review of the final decision of the Social
Security Administration and indicates that the Commissioner’s factual findings must be accepted
as conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing
the findings of an ALJ will reverse only if the findings are not supported by substantial evidence
or if the ALJ has applied an erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351
(7th Cir. 2005). Substantial evidence is more than a mere scintilla but may be less than the
weight of the evidence. Sheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004).
A reviewing court is not to substitute its own opinion for that of the ALJ or to re-weigh
the evidence, but the ALJ must build a logical bridge from the evidence to her conclusion.
Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). Judicial review is limited to determining
whether substantial evidence supports the ALJ’s findings. Schmidt v. Astrue, 469 F.3d 833, 841
(7th Cir. 2007). In cases of child disability, the standard remains the same whether the review is
requested for an initial disability determination pursuant to 20 C.F.R. § 416.202 or a disability
review under 20 C.F.R. § 416.994 as requested here by Lehman and A.L.
B.

Issues for Review

A.L. seeks reversal and remand of the ALJ’s decision, arguing that the ALJ’s opinion is
not supported by substantial evidence. In challenging the ALJ’s decision, A.L. argues that the
ALJ erred in not finding that A.L.’s impairments currently meet Listing 112.05(D) or (F) and
that A.L. has met the Listing since the date her benefits were terminated. A.L. was not analyzed

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under this Listing in the 2008 disability finding. Instead, the ALJ found A.L. disabled in 2008
under Listing 112.11. Listing 112.05(D) and (F) addresses mental and vocal impairments, which
require significantly subaverage general intellectual functioning among other things.
Specifically, A.L. contends evidence shows that A.L. possesses significantly subaverage
intelligence with deficits in adaptive functioning.
1.

The Listing

To determine whether A.L. remains disabled, the Commissioner has established a threestep analysis. See 20 C.F.R. § 416.994a(b). First, the Commissioner determines whether the
impairments from which the claimant suffered as of the most recent CPD have improved
compared to the date of the CPD. Second, if there has been improvement, the Commissioner
determines whether the child’s impairments meet or medically equal a Listing impairment
despite any improvement. Id. at § 416.994a(b)(2). Lastly, if the claimant’s impairments have
improved and are no longer disabling, the Commissioner must determine whether all of the
claimant’s impairments, including any which she did not suffer as of the latest CPD, are
nonetheless disabling.
The Listing describes impairments that are considered so severe that they are
“presumptively disabling.” Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999), citing 20 C.F.R.
§§ 404.1525(a), 416.925(a). The claimant bears the burden of proving that her condition meets
or equals a Listing impairment by showing that her condition satisfied all of the criteria of the
listed impairment. Maggard v. Apfel, 416 F.3d 376, 389 (7th Cir. 1999).
Listing 112.05 can be met through six impairments, two of which are relevant to this
case. The Listing can be met by showing that the child has a “valid, verbal performance, or full
scale IQ score of 60 through 70 and a physical or other mental impairment imposing an

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additional and significant limitation of function.” 20 C.F.R. Pt. 404, Subpart, P App. 1, §
112.05(D). Alternatively, the Listing can also be met by showing that the child has a “marked
impairment in age-appropriate cognitive or communicative function” and “a physical or other
mental impairment imposing an additional and significant limitation of function.” Id. at §
112.05(F). In both scenarios, the claimant must first show significant subaverage intellectual
functioning with deficits in adaptive functioning. Id. at § 112.05.
If there is a determination that a claimant’s symptoms do not meet or medically equal any
Listing, then the SSA will then determine whether the limitation “functionally equals a Listing.”
20 C.F.R. § 416.926a(a). To determine whether a child’s impairments functionally equal a
Listing, the Commissioner will assess the functional limitations caused by a claimant’s
impairments. Id.. The Commissioner will consider how a child functions in 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 yourself; and (6) health
and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)(vi). If a child’s impairments result in
“marked” limitations in two domains, or an “extreme” limitation in one domain, the
impairment(s) functionally equals the Listing(s) and the child will be found disabled. 20 C.F.R.
§416.926a(d).
For A.L.’s psychiatric impairments, the ALJ found that the record was without evidence
of significant objective psychiatric symptoms that would support greater domain limitations as
outlined in 20 C.F.R § 416.926a. The ALJ further noted that educational records and reports do
not support greater domain limitations. Furthermore, the ALJ determined that A.L.’s mental
health treatment since her CPD date encompassed no greater modalities of treatment than
sporadic medication management visits. The ALJ determined this to be unsupportive of greater

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domain limitations. The ALJ concluded that A.L. has less then marked limitations in her ability
to attend and complete tasks, interact and relate with others, move and manipulate objects, and
care for herself. The ALJ also concluded that A.L. has no limitation to her health and physical
well-being. The ALJ did, however, note marked limitation in the domain of acquiring and using
information that did not rise to the level of an extreme limitation. The ALJ finally noted that
since February 16, 2012, A.L. has not had an impairment or combination of impairments that
functionally equals the Listings. The ALJ specifically analyzed and discounted Listings 112.11,
112.08, and 112.02.
A.L. challenges the ALJ’s decision because her opinion included no evaluation of
whether her ADHD or bipolar disorder met, medically equaled or functionally equaled Listing
112.05. The Commissioner acknowledges that the ALJ’s opinion does not address Listing
112.05, but contends that she was not required to do so. The Commissioner expounds that a
disability through a 112.05 would have to be an intellectual disability. The Commissioner argues
that at the hearing neither A.L. nor Lehman ever testified that A.L. had an intellectual disability.
Similarly, the Commissioner contended that none of the treating or consulting psychologists
indicated that A.L. had an intellectual disability.
When an ALJ concludes that claimant does not meet a Listing, the ALJ must articulate
the bases for his conclusions. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002) (“By
failing to discuss the evidence in light of Listing 112.05's analytical framework, the ALJ has left
this court with grave reservations as to whether his factual assessment addressed adequately the
criteria of the listing.”). While the Commissioner submits that the evidence of the record
demonstrates that A.L. could not satisfy Listing 112.05, this Court is “hard pressed to find a
precise conclusion either implicitly or explicitly in the ALJ’s opinion.” Id. (citing Steele v.

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Barnhart, 290 F.3d 936, 941); see also Sarchet v. Charter, 78 F.3d 305, 307 (7th Cir. 1996).
The Commissioner argues that when there is no reason for the ALJ to consider a certain Listing,
then it is expected the ALJ would not consider the Listing when determining if A.L. was
disabled. Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 844 (6th Cir. 2005) (“Nothing in the
record indicates that the ALJ should have looked at 11.02, 11.03, 11.04.”). This principle,
however, is inapplicable to the circumstances in this case. In Pasco, the ALJ noted that the
objective medical evidence suggested a more appropriate evaluation under a different Listing. In
this case, however, there is evidence suggesting that an evaluation under Listing 112.05 may be
appropriate. A.L. achieved a full scale IQ score of 70, a necessary element to Listing 112.05(D).
However, the Commissioner’s argument that the ALJ was not required to analyze A.L.’s
impairments in relation to Listing 112.05 is misplaced. Here, the ALJ did consider listings such
as 112.11, 112.08, and 112.02, but the ALJ did not discuss or even reference Listing 112.05.
Without meaningful analysis from the ALJ regarding this evidence, this Court cannot engage in
meaningful judicial review of the ALJ’s decision. The ALJ failed to articulate adequately the
bases for her conclusions when she found that A.L. impairments did not meet the Listings.
Without establishing an adequate foundation, the ALJ could not build a logical bridge between
the evidence in the record and her conclusions regarding A.L.’s continuing disability. See
Haynes, 416 F.3d at 626.
2.

Harmless Error

The Commissioner adds, though, that even if it were error for the ALJ not to analyze
Listing 112.05, the error was harmless. An error in a Social Security determination is harmless
when, considering the evidence in the record, a court “can predict with great confidence what the

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result on remand will be.” McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011); see also Spiva
v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).
The Commissioner reasons that because A.L. did not present evidence in the record to
establish that A.L. met any subsection of Listing 112.05, any error was harmless. The
Commissioner concedes that A.L. met some of the criteria required by Listings 112.05(D) and
(F), including having a valid full IQ score of 70, a mental impairment that imposed an additional
and significant limitation function, and a marked impairment in cognitive function.
Despite these concessions, the Commissioner argues that A.L.’s impairments do not meet
or equal Listing 112.05(D) or (F) because she does not have the required deficits in adaptive
functioning. To meet the Listing 112.05 requirement for deficits in adaptive functioning, a
claimant must be “sufficiently impaired that ongoing support is needed in order for the person to
perform adequately in one or more life settings at school . . . or in the community.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS 5TH ED., Intellectual

Disability (Intellectual

Developmental Disorder) (Am. Psychiatric Ass’n, 2016).
A.L., on the other hand, argues that she established deficits in her adaptive functioning by
showing “numerous deficits in the conceptual domain.” [DE 18 at 8]. For instance, A.L. cites
the ALJ’s determination that she has a marked limitation in acquiring and using information to
substantiate the claim. A.L. also cites reports from psychological exams at Oaklawn that showed
she was behind in grade level math, that she struggled to understand vocabulary and written
material, that she had difficulty expressing herself, that she struggled with memory, and that she
had deficiencies in cognitive and adaptive behavior. The Commissioner argues that these are not
the type of deficiencies that were anticipated by the Listing. The Commissioner then moves on
to note that A.L. has average grades, that her mother testified that A.L. was on the honor roll a

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few times, that A.L. was able to read, knew the days of the week and months of the year, and that
both state agency psychological consultants opined that A.L. had less than marked limitation in
acquiring and using information. Notably, however, A.L. is enrolled in special education
classes, and the Commissioner did not consider the impact that a special education curriculum
would have on the significance of A.L.’s grades or other classroom achievements.
Based on these arguments and the evidence cited by the parties, the Court cannot
determine with great confidence what the result will be on remand. See McKinzey, 641 F.3d at
892. Evaluating A.L. under Listing 112.05 may very well lead the ALJ to determine that A.L. is
disabled, changing the outcome of the Commissioner’s decision on remand. Without meaningful
analysis from the ALJ regarding Listing 112.05, the parties have been left to dispute before this
Court the significance of A.L.’s impairments in light of Listing 112.05. Moreover, the Court is
left with a record that does not permit it to engage in the meaningful, albeit deferential, review
that the statute mandates. Therefore, the ALJ’s analyze whether A.L.’s impairments met or
equaled Listing 112.05 cannot constitute harmless error.
IV.

CONCLUSION
For the above reasons, this Court concludes that the ALJ erred in not analyzing Listing

112.05. Therefore, A.L’s motion for reversal or remand is GRANTED. [DE 18]. This Court
REVERSES the Commissioner’s decision pursuant to sentence four of 42 U.S.C. § 405(g) and
REMANDS for further proceedings consistent with this opinion. The Clerk is instructed to term
the case and enter judgment in favor of Lehman.

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SO ORDERED
Dated this 31st day of January, 2017
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

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