BAKER v. ASTRUE

Filing 26

ENTRY ON JUDICIAL REVIEW: The ALJ fulfilled his obligation to build a clear and logical bridge from the evidence to his conclusion and his conclusion is supported by substantial evidence. Accordingly, the decision of the Commissioner is AFFIRMED ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 8/31/2012.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JONIE BAKER,
on behalf of C.S.A., A MINOR,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 1:11-cv-00592-WTL-DKL

ENTRY ON JUDICIAL REVIEW
Plaintiff Jonie Baker requests judicial review of the final decision of Defendant Michael
J. Astrue, Commissioner of the Social Security Administration (“Commissioner”), on behalf of
C.S.A., a minor, denying her application for Supplemental Insurance Benefits (“SSI”) under XVI
of the Social Security Act (“the Act”). The Court now rules as follows.
I.

PROCEDURAL BACKGROUND

On January 19, 2007, Baker filed an application for SSI on behalf of C.S.A., a child
under the age of 18, alleging that C.S.A. became disabled on January 19, 2007, primarily due to
attention deficit hyperactive disorder. Baker’s applications were denied initially on May 14,
2007, and again on reconsideration on July 24, 2007. Following the denial on reconsideration,
Baker requested and received a hearing in front of an Administrative Law Judge (“ALJ”). A
hearing, during which Baker was represented by counsel, was held on July 24, 2009. ALJ
Stephen E. Davis presided over the hearing. On October 29, 2009, the ALJ issued a decision
denying C.S.A. benefits. The Appeals Council denied a request for review on May 10, 2011,
after which Baker filed this timely appeal.

II.

SUBSTANTIVE BACKGROUND

At the time of the hearing, C.S.A. was twelve years old. C.S.A. was ten years old at the
time of her alleged onset date of January 19, 2007. On application for benefits, and on
subsequent appeals, C.S.A. alleged problems with attention deficit-hyperactive disorder, lazy
eye, and kidney condition. Relevant portions of C.S.A’s medical records follow.
C.S.A. was observed in the classroom on November 20, 2003. She had great difficulty
following along with the teacher, following directions, and sitting still in a one-on-one situation.
On November 21, 2003, an Individual Education Program (IEP) was implemented for
C.S.A. C.S.A.’s strengths were listed as being able to do some academic work with extra
assistance and staying on task. Concerns were her difficulties in following directions and staying
motivated for a task. She had low academic performance, difficulties with social skills, attention
difficulties, was overly sensitive to physical problems, and demonstrated poorly developed
perceptual-motor and organizational skills for her age. Her visual difficulties were not viewed as
affecting her academics. The reviewing committee determined that C.S.A. did not meet the
eligibility criteria for special education.
On November 13, 2006, C.S.A. was referred to General Education Intervention because
she could not complete homework without guided assistance, needed constant assistance in
organizational skills, and failed math in the ISTEP the previous fall. It was recommended that
her work be modified to include shorter assignments, have a timer on her desk, and work with a
doctor on attention skills.
A psychologist performed an educational evaluation of C.S.A. on January 22 and 29,
2007. This evaluation was ordered to determine the possibility of a learning disability, as
C.S.A.’s teachers had expressed concern about her math computation skills. C.S.A. was noted to

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be fidgety and restless throughout testing, rarely sitting in her chair and preferring to stand or
crawl under the table to answer questions. Some redirection was required to keep her on task
during the testing session, but the test results were deemed a valid estimate of her level of
functioning. The Woodcock-Johnson Tests of Cognitive Abilities – III was administered and
revealed an overall cognitive ability falling within the low average range of global intelligence.
The Wechsler Intelligence Scale for Children – IV was also administered and revealed a verbal
comprehension index score of 89, a perceptual reasoning index score of 86, a working memory
index score of 83, a processing speed index score of 85, and a full scale IQ of 82. These scores
are in the low average range.
A Child Function Report was completed on January 31, 2007. It was noted that C.S.A.
had problems seeing and used glasses or contact lenses, had no problem hearing, was not unable
to talk, was not limited in her ability to communicate, had limitations in progress in learning, had
no physical limitations, had impairments that did not affect her ability to care for herself, and
could pay attention. The reviewer was unsure whether C.S.A.’s impairments affected her
behavior with other people.
A Teacher Questionnaire was filled out on March 19, 2007, by C.S.A.’s fourth grade
teacher. The teacher noted that C.S.A. had a very serious problem with comprehending
and following oral instructions, comprehending and doing math problems, providing organized
oral explanations and adequate descriptions, expressing ideas in written form, learning new
material, recalling and applying previously learned material, and applying problem-solving skills
in class discussions. C.S.A. had a serious problem understanding and participating in class
discussions, an obvious problem understanding school and content vocabulary, and a slight

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problem reading and/or comprehending written material. It was further noted that standardized
tests showed significant below-average performance compared to norm groups and criteria.
Regarding C.S.A.’s ability to attend to and complete tasks, the teacher noted that C.S.A.
had a very serious problem, on an hourly basis, focusing long enough to finish an assigned
activity or task, carrying out multi-step instructions, organizing her own things or school
materials, completing class/homework assignments, completing work accurately without careless
mistakes, working without distracting herself or others, and working at a reasonable
pace/finishing on time. On a daily basis, C.S.A. had a serious problem paying attention when
spoken to directly and refocusing to task when necessary. C.S.A. had a slight problem sustaining
attention during play/sports activities and carrying out single-step instructions. In interacting and
relating with others, C.S.A. demonstrated obvious problems, on a daily basis, relating
experiences and telling stories, introducing and maintaining relevant and appropriate topics of
conversation, taking turns in conversation, and using adequate vocabulary and grammar to
express thoughts/ideas in general everyday conversation. The teacher noted no problems moving
about and manipulating objects, nor with caring for herself.
On April 4, 2007, a Case Conference Summary/IEP/ITP was issued for C.S.A. In this
report C.S.A.’s achievement was noted to be slower than average due to low average cognitive
ability. She was working below grade level, often refused to complete in-class assignments, and
had inconsistent work product. She needed a structured class, clear expectations, and frequent
academic support for reteaching and practice. Further, C.S.A. was assessed as being withdrawn,
unwilling to engage in academic activities with peers, and displaying immature behavior. Also,
attendance had been a serious concern throughout her school career, missing several full and half
days of school. The conclusion of the report, however, was that C.S.A. was not eligible for

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special education services. On April 10, 2007, C.S.A.’s mother was informed of this decision and
informed that regular education placement was most appropriate for her child.
On April 16, 2007, C.S.A. attended a physical examination by the Indiana Department of
Family and Social Services Disability Determination Bureau. Her mother alleged that she was
applying for SSI benefits due to C.S.A. being a slow learner and having bad kidneys and bad
eyes. After treatment for her kidneys and surgery on her eyes, C.S.A.’s mother reported that she
no longer had kidney or eye problems. Her major problem was ADHD and being a slow learner.
Her mother reported that she often got up and ran around class, did not obey rules, did not follow
the teacher, had to be told several times to do certain things, and even with that, had a hard time
following commands. Reviewing doctor Dr. Tasneem Majid diagnosed ADHD and lazy eye. A
counseling session and behavioral therapy session was recommended, as well as ADD or ADHD
medication.
C.S.A. attended a mental status evaluation for Social Security on April 25, 2007.
There was no history of psychiatric treatment and C.S.A. was not reported to be taking any
medication. Examining physician Dr. Albert H. Fink assessed low average intelligence by
history and a GAF of 68.
A Childhood Disability Evaluation Form was completed on April 26, 2007, which
deemed C.S.A. to have a severe impairment that did not meet, medically equal, or functionally
equal the listings. Regarding the domain evaluations, C.S.A.’s limitations were less than marked
in acquiring and using information and marked in attending and completing tasks. She was
deemed to have no limitations in interacting and relating with others, moving about and
manipulating objects, caring for herself, and her health and physical well-being. These findings
were reaffirmed on July 22, 2007, with the exception that the reviewing physician assessed a

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less-than-marked limitation in health and physical well-being. On August 14, 2008, it was
recommended that C.S.A. be placed in special education due to a learning disability.
On January 9, 2008, C.S.A. was assessed by Dr. John Alessi as having ADHD,
Predominantly Inattentive Type, with moderate severity and difficulty concentrating, sitting still,
and focusing on tasks. Dr. Alessi prescribed Strattera.
On April 15 and 16, 2008, C.S.A. underwent an educational evaluation. C.S.A. struggled
with math but liked reading. She got along well at home with her parents and siblings, and was
doing well academically, but she disliked school. The Wechsler Intelligence Scale for Children –
IV was administered, and C.S.A. scored a 102 on Verbal Comprehension Index, 100 on
Perceptual Reasoning Index, 94 on Working Memory Index, 91 on Processing Speed Index, and
a Full Scale IQ of 98. Overall, her cognitive ability was deemed average. On the Woodcock
Johnson Tests of Achievement – III, her reading and written language achievement level was
rated average, but her mathematics achievement was in the low average range. Parent and
teacher ratings of behavior and emotions were inconsistent and did not identify any significant
emotional concerns. Ratings did identify concerns with depression at home and learning
problems within the school setting.
III.

APPLICABLE STANDARD

To be eligible for SSI, a claimant must have a disability under 42 U.S.C. ' 423.
“Disability” means the inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that has lasted or can be expected to last
for a continuous period of not less than twelve months. 42 U.S.C. ' 423(d)(1)(A). The standard is
a stringent one. The Act does not contemplate degrees of disability or allow for an award based
on partial disability. See Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir. 1985).

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In determining whether a claimant under the age of eighteen is disabled, the
Commissioner employs a three-step sequential analysis. 20 C.F.R. ' 416.924(a). At step one, if
the claimant is engaged in substantial gainful activity, she is not disabled, despite her medical
condition. 20 C.F.R. ' 416.924(b). At step two, if the claimant does not have a “severe”
impairment or a combination of impairments that is “severe,” she is not disabled. 20 C.F.R. '
416.924(c). If the impairment is severe, the analysis proceeds to step three, under which the
Commissioner determines whether the claimant=s impairment or combination of impairments
meets or medically equals any impairment that appears in the Listing of Impairments or that
functionally equals the listings. 20 C.F.R. pt. 404, subpt. P, App. 1. If the claimant has an
impairment or combination of impairments that meets, medically equals, or functionally equals
the listings and meets the twelve-month duration requirement, the claimant is deemed disabled.
20 C.F.R. ' 416.906.
In determining whether an impairment functionally equals the listings, the ALJ must
examine six domains: (1) acquiring and using information; (2) attending and completing tasks;
(3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring
for oneself; and (6) health and physical well-being. 20 C.F.R. ' 416.926a(b)(1)(i)-(vi). The
claimant=s impairment or combination of impairments must result in “marked” limitations in two
or more domains or an “extreme”@ limitation in one domain. 20 C.F.R. ' 416.926(a). A “marked”
limitation is one that seriously interferes with the claimant’s ability to sustain and complete
activities. 20 C.F.R. ' 416.926a(e)(2)(i). An “extreme” limitation is one that very seriously
interferes with the claimant’s ability to sustain and complete activities. 20 C.F.R. '
416.924a(e)(3)(i).

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In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this Court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this Court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ “need not evaluate
in writing every piece of testimony and evidence submitted.” Carlson v. Shalala, 999 F.2d 180,
181 (7th Cir. 1993). However, the “ALJ’s decision must be based upon consideration of all the
relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). The ALJ is required to
articulate only a minimal, but legitimate, justification for his acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004).
IV.

THE ALJ’S DECISION

Applying the three-step analysis, the ALJ found at step one that C.S.A. had not engaged
in substantial gainful activity since January 19, 2007, the application date. At step two, the ALJ
determined that C.S.A. had the severe impairment of ADHD. At step three of the analysis, the
ALJ determined C.S.A. did not have an impairment or combination of impairments that met,
medically equaled, or functionally equaled the listings. The ALJ determined that C.S.A. had a
less-than-marked limitation in acquiring and using information and a marked limitation in
attending and completing tasks, but no other limitations. The ALJ found that this was not enough
to satisfy the criteria at step three and accordingly denied the claim.

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V.
A.

DISCUSSION

Assessment of Testimonial Evidence under SSR96-7p

Baker argues that the ALJ’s credibility analysis pursuant to SSR 96-7p was in error
because the ALJ failed to properly assess the type, dosage, effectiveness, and side effects of
medication that C.S.A. took. The Commissioner argues that, even if this were error, it was
harmless.
When assessing whether a claimant has an impairment that functionally equals the
listings, an ALJ must determine the claimant’s degree of limitation in each of six functional
domains by considering the claimant’s symptoms and the extent to which these symptoms are
consistent with the objective medical evidence and other evidence. In considering the claimant’s
symptoms, the ALJ follows a two-step process. At step one, the ALJ determines whether there is
an underlying medically determinable physical or mental impairment that could reasonably be
expected to produce the claimant’s pain or other symptoms. At step two, the ALJ evaluates the
intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s ability to do basic activities. For this purposes, whenever
statements about the intensity, persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on
the credibility of the statements based on a consideration of the entire case record.
An ALJ’s assessment of the claimant’s credibility is entitled to special deference and is
not grounds for reversal and remand unless it is “patently wrong.” E.g., Craft v. Astrue, 539 F.3d
668, 678 (7th Cir. 2008). Social Security Ruling 96-7p provides seven factors that an ALJ may
consider with respect to his credibility determination: the individual’s daily activities; the
location, duration, frequency, and intensity of the individual’s pain or other symptoms; factors

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that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of
medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other
than medication, the individual receives or has received for relief of pain or other symptoms; any
measures other than treatment the individual uses or has used to relieve pain or other symptoms;
and any other factors concerning the individual’s functional limitations and restrictions due to
pain or other symptoms. In assessing the credibility of the claimant, the ALJ need not cite
findings on every factor provided in 96-7p, but the ALJ must articulate the reasons for his
decision in such a way as to “make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reasons for that weight.”
Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7th Cir. 2003) (citing SSR 96-7p).
Here, Baker asserts that the ALJ erred in his consideration of the factor regarding type,
dosage, effectiveness, and side effects of medication C.S.A. took. The ALJ concluded that “the
claimant’s use of medications does not suggest the presence of an impairment which is more
limiting than found in this decision,” because “there have been significant periods of time since
the alleged onset date during which the claimant has not taken any medications.” This conclusion
was error, Baker argues, because the ALJ failed to consider Baker’s testimony that C.S.A. did
not take her medication because it made her vomit.
“Although a history of sporadic treatment or the failure to follow a treatment plan can
undermine a claimant’s credibility, an ALJ must first explore the claimant’s reasons for the lack
of medical care before drawing a negative inference. . . . An ALJ may need to ‘question the
individual at the administrative proceeding in order to determine whether there are good reasons
the individual does not seek medical treatment or does not pursue treatment in a consistent
manner.’ . . . The claimant's ‘good reasons’ may include an inability to afford treatment,

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ineffectiveness of further treatment, or intolerable side effects.” Shauger v. Astrue, 675 F.3d 690,
696 (7th Cir. 2012)(citations omitted). Here, the ALJ did not consider alternative explanations
for why C.S.A. did not take medication before drawing the negative inference that C.S.A.’s
ADHD did not functionally equal the listings. In this way, the ALJ ran afoul of SSR 96-7p.
However, the Court finds that the error was harmless. The ALJ specifically addressed each factor
in his credibility analysis. For example, the ALJ analyzed in detail C.S.A.’s allegations regarding
location, duration, frequency, and intensity of her symptoms against her longitudinal medical
history, before finding her allegations unsupported by the record. Given the analysis the ALJ
engaged in with respect to the SSR 96-7p factors, the Court finds that proper consideration of
alternative explanations with respect to this single factor would not have changed the outcome.
B.

Assessment of Childhood Listings of Functional Equivalence

Baker also asserts that the ALJ erred when he failed to discuss Listing 112.11, its
implications, and relevant evidence. Further, Baker argues that “the decision mentions the six
childhood domains of functional equivalence that are to be evaluated, however, the ALJ never
solicited evidence regarding these domains at the hearing.” Finally, Baker argues that the ALJ’s
decision was less than fully informed because no psychological expert was present at the hearing
to testifying regarding the evidence as it relates to the domains.
With regard to whether C.S.A. met Listing 112.11, the ALJ clearly addressed the listing,
its requirements and implications, and the relevant evidence. The ALJ acknowledged that,
pursuant to 112.11(B), in order to meet this listing, a claimant must demonstrate marked
impairment in at least two of the following: age-appropriate cognitive/communicative function,
age-appropriate social functioning, age-appropriate personal functioning, or marked difficulties
in maintaining concentration, persistence or pace. For his analysis on C.S.A.’s abilities to

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function in these areas, the ALJ referred to his later analysis regarding whether C.S.A.’s ADHD
functionally equaled the listings. Given the near total overlap between the criteria for meeting
112.11 or functionally equaling a listing with respect to ADHD, it was not error for the ALJ to
do so. Furthermore, the ALJ’s analysis with respect to whether C.S.A. functionally equaled a
listing was detailed and thorough, building an accurate and logical bridge to his conclusion.
Baker’s assertion that the ALJ did not solicit evidence regarding any of the criteria of
Listing 112.11 at the hearing is simply incorrect. The following is a list of the just some of the
questions the ALJ asked at the hearing:
1. “[Does C.S.A.] give[ ] you a, a hard time getting dressed for school?”
2. “Does she dress herself during the school year?”
3. “Are there particular chores that you have kind of assigned to her to do on a regular
basis?”
4. “How does she get along with her other siblings?”
5. “Does she have friends in the neighborhood that she plays with? “What kinds of
things do they do? ”
6. “Does she do any reading on her own?”
7. “Will [C.S.A] stayed seated at the table for dinner?”
8. “You talked about counseling at Quincoe, and you said she completed it? Does that
mean you had her in counseling for, like, a specific timeframe there, or some kind of
[inaudible] program or something, or what, what was that about?”
9. “Is she able to stay home at all on her own?”
10. “If she’s outside and has a, a timeline to come back in, does she have a watch or
something where she can keep track of the time and know when to return home?”
Finally, Baker’s argument that the ALJ erred by not calling a psychological expert is
without merit. An ALJ’s decision to call a medical expert is discretionary. 20 C.F.R. §
416.927(e)(2)(iii). “If the ALJ believes that he lacks sufficient evidence to make a decision, he
must adequately develop the record, and, if necessary, obtain expert opinions.” Clifford v. Apfel,
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227 F.3d 863 (7th Cir. 2000). Baker has not asserted any reason why she believes it was error for
the ALJ to fail to call a psychological expert. Finding no reason itself, the Court finds that the
ALJ’s decision was not in error in this respect.
C. Lack of Substantial Evidence to Support the ALJ’s Functional Equivalence
Determination
Finally, Baker argues that the ALJ’s decision was not supported by substantial evidence
because the ALJ overlooked key medical evidence.
Although an ALJ must articulate his analysis of the evidence in his decision, he “is not
required to address every piece of evidence or testimony,” but must “provide some glimpse into
[his] reasoning . . . [and] build an accurate and logical bridge from the evidence to [his]
conclusion.” Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). Therefore, as long as the
ALJ’s reasoning behind his decision is logical and clear, the ALJ has not erred simply by not
explicitly discussing every piece of evidence.
According to Baker, the ALJ failed to consider a teacher questionnaire completed on
March 19, 2007, by C.S.A.’s fourth grade teacher. However, it is clear that the ALJ considered
the evidence in this record with respect to several different aspects of his analysis, including the
location, duration, frequency and intensity of C.S.A.’s symptoms, her ability to acquire and use
information, and her ability to attend to and complete tasks. It is true that the ALJ gave this
report less weigh because it was completed after “approximately three weeks” of contact with
C.S.A. and because it was inconsistent with medical record evidence dated merely one month
later, but Baker does not assert, and the Court does not find, that the weight the ALJ gave this
report was in error.

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It is unclear the significance of the remaining evidence that Baker asserts the ALJ
ignored. These records indicate that C.S.A. had difficult following along with the teacher,
following directions, and completing homework without assistance in 2003. The ALJ accepted
and acknowledged C.S.A.’s limitations during this time – “The school psychologist, Mr. Nelson,
Ed.S., noted that the claimant . . . had behavior and emotions indicative of attention problems
causing school difficulties and suggested further evaluation by a case conference committee” –
and then put these records in context given more recent school reports. Citation to additional
records would be duplicative of evidence the ALJ had already accepted, discussed, and
considered. Therefore, the ALJ’s decision was supported by substantial evidence and must be
upheld.
VI.

CONCLUSION

The ALJ fulfilled his obligation to build a clear and logical bridge from the evidence to
his conclusion and his conclusion is supported by substantial evidence. Accordingly, the decision
of the Commissioner is AFFIRMED.
SO ORDERED: 08/31/2012

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication.

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