T.D.C. v. ASTRUE

Filing 32

ORDER - For the reasons detailed herein, we AFFIRM the decision of the Commissioner. Signed by Judge Sarah Evans Barker on 9/24/2013.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
T. D. C. a minor by his mother,
COMALIANA V. ANDERSON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the
Social Security Administration,
Defendant.

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Case No. 1:12-cv-00605-SEB-DML

ORDER
T.D.C., a minor (“Claimant”), by his mother Comaliana V. Anderson, seeks
judicial review of a final decision of the Commissioner of the Social Security
Administration denying his application for Supplemental Security Income (“SSI”)
disability benefits under Title XVI of the Social Security Act.
Introduction
The Claimant had received SSI benefits from infancy beginning in 2000
because of complications from his premature birth, but those benefits were later
terminated after a medical review in 2005 found that he no longer was disabled.
The termination of benefits was appealed through the administrative process and to
this court, which affirmed the Commissioner’s 2008 decision on July 28, 2009. See
Case No. 1:08-cv-1544-DML-LJM. The Claimant applied again for SSI in 2008 and
alleged that his disability began on April 1, 2008. (R. 111). Acting for the
Commissioner of the Social Security Administration following a hearing on

December 28, 2010, an administrative law judge (“ALJ”) found that the Claimant
was not disabled at any time through the date of his decision of April 22, 2011. The
national Appeals Council denied review of the ALJ’s decision, rendering the ALJ’s
decision for the Commissioner final. The Claimant timely brought this civil action
for review of the Commissioner’s decision under 42 U.S.C. § 405(g) and 42 U.S.C. §
1383(c)(3) (which makes section 405(g) applicable to judicial review of denials of SSI
benefits).
The Claimant contends that the ALJ’s 2010 ecision is erroneous because (a)
the Claimant’s impairments met, or medically or functionally equaled, the criteria
under Child Listing 112.08 (personality disorders), or that the ALJ was required to
hear testimony from a medical expert before reaching a contrary conclusion and (b)
the ALJ did not make an express determination of the credibility of the Claimant’s
mother.
For the reasons detailed herein, the Commissioner’s decision is AFFIRMED.
Standard for Proving Disability
A person who is younger than 18 is eligible for disability benefits under the
SSI program if he has “a medically determinable physical or mental impairment,
which results in marked and severe functional limitations, and which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). The
SSA has implemented this statutory standard by, in part, prescribing a three-step
sequential evaluation process. 20 C.F.R. § 416.924. Step one asks if the child is

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engaged in substantial gainful activity (i.e., is earning money at a certain level); if
he is, then he is not disabled. § 416.924(b). Step two asks whether the child’s
impairments, singly or in combination, are severe; if they are not, then he is not
disabled. § 416.924(c). The third step is an analysis of whether the child’s
impairments, either singly or in combination, meet or equal the criteria of any of
the conditions in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P,
Appendix 1, Part B. If they do and the duration requirement is satisfied, then the
child is deemed to be disabled. §416.924(d).
The Part B Listing of Impairments is a compilation of medical conditions,
divided into fourteen major body systems, that the SSA has adjudged are disabling
in children. 20 C.F.R. § 416.925. In general, each listed condition is defined by two
sets of criteria: (1) diagnostic findings that substantiate the existence of a listed
condition and (2) sets of related functional limitations that substantiate the
condition’s disabling severity. Id. A child’s impairment or group of impairments
can satisfy a listed condition in one of three ways: by meeting all the listed criteria,
20 C.F.R. § 416.925(c)(3); by medically equaling the criteria, § 416.926 (i.e., the
impairments do not match the listed criteria for a listed condition but they are of
“equal medical significance” to those criteria or condition), or by functionally
equaling the criteria, § 416.926a(a).
Functional equivalence involves an analysis of six “domains” of functioning
and determination of whether and the extent to which a child’s impairments limit
his functioning in those domains. The domains are:

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(1) acquiring and using information,

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(2) attending to and completing tasks,

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(3) interacting and relating with others,

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(4) moving about and manipulating objects,

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(5) caring for self, and

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(6) health and physical well-being.

20 C.F.R. § 416.926a(b)(1). If the child’s impairments cause “marked” limitations in
at least two domains, or cause “extreme” limitations in at least one domain, then his
medical condition is functionally equivalent to a listing and he is disabled. 20
C.F.R. § 416.926a(d). In general, a “marked” limitation exists when a child’s
impairment(s) “interfere[] seriously with [his] ability to independently initiate,
sustain, or complete activities” within a particular domain. It is a limitation that is
“more than moderate” but “less than extreme.” 20 C.F.R. § 416.926a(e)(2). An
“extreme” limitation is one that “very seriously” interferes with a child’s ability to
initiate, sustain, or complete activities within a domain. 20 C.F.R. § 416.926a(e)(3).
Standard for Review of the ALJ’s Decision
Judicial review of the Commissioner’s (or ALJ’s) factual findings is
deferential. A court must affirm if no error of law occurred and if the findings are
supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). Substantial evidence means evidence that a reasonable person would
accept as adequate to support a conclusion. Id. The standard demands more than a

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scintilla of evidentiary support, but does not demand a preponderance of the
evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).
The ALJ is required to articulate a minimal, but legitimate, justification for
his decision to accept or reject specific evidence of a disability. Scheck v. Barnhart,
357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence
in his decision, but he cannot ignore a line of evidence that undermines the
conclusions he made, and he must trace the path of his reasoning and connect the
evidence to his findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th
Cir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Analysis
The Claimant is an elementary school student. He contends that the record
evidence of his disruptive behavior, particularly at school, compelled a finding by
the ALJ that the Claimant met, medically equaled, or functionally equaled listing
112.08, which describes a severity of personality disorders that is presumptively
disabling in children. We find, however, insufficient basis for reversing or
remanding the Commissioner’s decision that the Claimant was not disabled.
Listing 112.08 covers personality disorders that are “[m]anifested by
pervasive, inflexible, and maladaptive personality traits, which are typical of the
child’s long-term functioning and not limited to discrete episodes of illness.” To fall
under the listing, the disorder must either satisfy both A criteria and B criteria, or
must manifest itself through functional deficits. The ALJ found that the B criteria
were not met. The B criteria require marked impairment in at least two of the

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following four areas: (a) age-appropriate cognitive/communicative function; (b) ageappropriate social functioning; (c) age-appropriate personal functioning; and (d)
maintaining concentration, persistence, or pace. The ALJ determined that the
Claimant had less than marked impairment in all four areas. As to the six
functional domains, the ALJ determined that the Claimant was not markedly
limited in any of them.
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The ALJ’s evaluation of the evidence is reasoned.

The overall thrust of the ALJ’s evaluation of the Claimant’s functioning, both
in relation to the B factors under listing 112.08 and with respect to the six domains
of functioning, is that the Claimant’s impulsivity, aggressiveness, lack of
concentration, and otherwise poor control of his behavior are significantly improved
and well controlled by medication, when he takes it. He does well while on
medication and is hyperactive and does poorly to control his behavior without it.
The evidence adequately supports that conclusion.
Although the Claimant assails the determination that he is not disabled, he
cannot point to any particular line of evidence that the ALJ failed to consider when
making that determination. Contrary to the Claimant’s contentions, the ALJ
addressed (a) the Claimant’s treatment records from Gallahue Mental Health
Center, which was precipitated by behavioral problems at school in the Spring of
2008, and which led to a prescription (Concerta) for the treatment of Attention
Deficit Hyperactivity Disorder and Disruptive Behavior Disorder NOS, (b) various
school records documenting incidents of disruptive and aggressive behavior in the

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Spring of 2008 and in 2010, (c) one-page reports by two school teachers in June 2010
describing the Claimant as “marked” or “extreme” in various of the six domains of
functioning, and (d) school records in March 2011 (following the hearing but before
the ALJ’s decision) documenting two instances of inappropriate behavior over a
week’s time in that month. The ALJ addressed these records—and many others—
as part of a longitudinal evaluation of the Claimant’s medical and mental health
treatment and his functioning at school. Among other things, the ALJ described
and evaluated the following evidence.
Treatment at Gallahue
In April 2008—while in the second grade—the Claimant was first seen at
Gallahue Mental Health Center and was reported to be hyperactive and with poor
impulse control, and to have received frequent detentions at school. He was
initially diagnosed with a disruptive disorder NOS and “rule out ADHD.” The
Claimant received mental health services at Gallahue periodically from April 21,
2008, through October 23, 2008, and was placed on medication (Concerta) to
address his behavioral and concentration issues. An October 2008 Report of
Psychiatric Status described significant progress and improvement, and it
discharged the Claimant from counseling treatment at Gallahue and noted his need
for continued medication. The report recounted that the Claimant had not received
any school detentions since beginning his medication regimen and that he had had
no issues with easy distraction, excessive talking, hyperactivity, worry, and poor

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concentration since starting medication. The Claimant’s mother also reported that
things were going well and the Claimant was no longer in trouble at school.
In November 2008, the Claimant underwent a mental status examination by
an agency psychologist, Dr. Robert R. Blake. His mother reported to Dr. Blake that
the Concerta had helped a lot and that the Claimant’s behavior was so improved,
she believed he probably did not need continued counseling. The Claimant’s
academic performance in the second grade was also good, and his mother stated
that he was earning mostly As and Bs. Overall, Dr. Blake indicated that the
Claimant had good functioning in the classroom and socially and that his ability to
continue to function well would be primarily affected by whether the Claimant took
his medication. Dr. Blake diagnosed the Claimant with ADHD but controlled with
medication. (See R. 22). The Claimant also had a consultative physical evaluation
by an agency physician in November 2008. His asthma was found to be
appropriately controlled by medication and no problems with his physical health
were noted. (Id.).
School Case Conference Reports
The Claimant was periodically evaluated by a school case conference
committee that tracked a language impairment for which the Claimant received
special school services in the form of speech therapy. The ALJ discussed that the
case conference committee report dated March 2009 noted that the Claimant had
made steady progress in speech therapy, had been moved to an advanced reading

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group, and had average math and writing skills. The report noted he had good
social skills and got along fine with the other children. (R. 23, R. 189).
The ALJ also discussed the school case conference committee report dated
April 2010, which was prepared during the Claimant’s third grade year. ( R. 210).
That evaluation did not indicate any problems with the Claimant’s cognitive
functioning, did not document any problems with the Claimant’s social functioning,
and noted that the Claimant’s teacher described him as a student who completes his
homework and who can be a leader at times.
Martindale Brightwood Health Center
The Claimant received regular healthcare at Martindale Brightwood Health
Center, which managed his asthma and ADHD care and treatment. The ALJ noted
that those records, dated in August 2009, March 2010, June 2010, and November
2010, tracked the Claimant’s ADHD symptoms (noting how the Claimant was doing
in the areas of hyperactivity, inattentiveness, impulsivity, and learning and
socializing problems) and judged whether the Claimant’s mood and behavior were
within normal limits. They characterized the Claimant’s mood and behavior as
within normal limits, his ADHD symptoms as improved, and correlated the
medication with his controlled behavior. The November 2010 record also stated
that the claimant almost made the honor roll. This view of the medical
professionals at Martindale Brightwood—that the Claimant’s behavioral issues are
controlled when he attends properly to his medication—is consistent with the

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medical opinion that Dr. Blake, the agency examiner, had reached in November
2008.
Evidence of Poor Behavior, Concentration, and Social Functioning
The ALJ did not ignore that the Claimant exhibited some instances of very
poor behavior at school and that two teachers reported in June 2010 that he had
marked or extreme deficits in functioning. Instead, the ALJ acknowledged and
evaluated the teachers’ reports, noted that school records documented three
separate instances of bad behavior in January 2010, February 2010, and November
2010, and two instances of unacceptable behavior in March 2011. The March 2011
behavior—defiant behavior while the Claimant was serving in-school detention—
was discussed in a 2011 school case conference report that was also supplied after
the hearing.
The ALJ determined that the teachers’ statements—noting “marked” and
“extreme” problems in many functional areas—were not supported by the overall
longitudinal record, including detailed school case conference reports and the
Martindale Brightwood Health Center records.1 His contrast of the teachers’
opinions with the medical records and the longitudinal history of case conference
Two teachers filled out one-page evaluation forms supplied by the Claimant’s counsel that asked
them to place a checkmark to denote the Claimant’s “ability level” as “no limitation,” “less than
marked,” “marked,” or ‘extreme” in each of the six functional domains. The forms do not define these
terms. One teacher checked that the Claimant was “marked” in his ability level for “Attending and
Completing Tasks” and “extreme” in his ability level for “Interacting and Relating to Others.” In
explaining her views, the teacher said that the Claimant “has the ability to interact appropriately,
however he chooses to be argumentative and talk back to adults”; his “peer relations are poor”; but
he “can be attentive when he is interested in the subject taught.” (R. 208). The second teacher
checked that the claimant was “marked” in his ability level for “Acquiring and Using Information,”
“Attending and Completing Tasks,” “Moving About and Manipulating Objects,” and “Caring for Self.”
She checked that the Claimant was “Extreme” in his ability level for “Interacting and Relating to
Others” and “Health and Well-Being.” She supported her views with the explanation that the
Claimant “is very disruptive” and “has a very difficult time staying on task.” (R. 209).
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reports provided a sufficient and reasoned basis on which to discount those
opinions.
With regard to the three documented instances of poor behavior at school in
2010 and those in March 2011, the ALJ analyzed them as bearing on the Claimant’s
social functioning, but also viewed them as reflective of behavioral problems tied to
failures in the Claimant’s medicine regimen. The ALJ stated: “As pointed out in
the record, when off medication, the claimant gets very hyperactive.” (R. 19).
Again, that analysis is strongly supported by the record, including the school’s case
conference evaluation of the Claimant’s March 2011 behavior (in which he was
disruptive, then disrespectful and physically aggressive toward a teacher, and then
obstinate and defiant). The report notes that the Claimant had not taken his
medication and that his doctor recently had changed his medication. (R. 533).
On the whole, the ALJ addressed the pertinent evidence and evaluated it
against the requirements of the relevant listings. We find that the decision is
adequately supported.
We now turn to the Claimant’s arguments that the ALJ committed legal
errors with respect to his mother’s credibility and the lack of a testifying medical
expert at the hearing.

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2.

The lack of an express credibility determination does not
require remand.

The Claimant argues that the ALJ committed a legal error by failing
expressly to give an opinion regarding the mother’s credibility. The Commissioner
rejoins that in a child disability case, the lack of an express discussion regarding the
credibility of the child’s guardian is not erroneous or a reason for remand when
there is no indication that the ALJ discredited the guardian’s testimony. See Hilson
v. Barnhart, 64 Fed. Appx. 134, 136 (10th Cir. 2003) (unpublished). Moreover, ALJ
Davis’s discussion of the Claimant’s educational and medical records reflects his
consideration of the mother’s observations and opinions regarding her child’s
functioning.
The Claimant’s reply brief does not address Hilson or respond to the fact that
the ALJ addressed the mother’s reports to her child’s school and medical care
providers. He also does not identify any particular testimony by the mother that he
believes was erroneously discounted by the ALJ. Instead, the Claimant argues that
the mother’s testimony (though he does not cite any particular testimony) made the
June 2010 teacher evaluations more credible (but he does not explain how) than the
ALJ found them to be. As earlier discussed, the ALJ provided reasoned support for
rejecting the one-page teacher evaluations in light of the entire longitudinal school
and medical records.
Accordingly, we find unconvincing the Claimant’s argument that the lack of
an express credibility determination by the ALJ is a ground for remand.
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3.

The ALJ was not required to obtain additional medical
evidence.

The Claimant also asserts that it was legal error for the ALJ to evaluate
whether he met, medically equaled, or functionally equaled any listing without
obtaining the testimony of a psychologist at the hearing. He asserts that because
the medical expert analyses by agency professionals were prepared in 2008 and
March 2009, and thus necessarily did not consider the June 2010 teacher
evaluations or the March 2011 disruptive behavior at school, the ALJ was required
to summon a medical advisor to testify whether, in light of that evidence, the
claimant’s impairments medically or functionally equaled any listing. The
Claimant cites two cases to support this argument, but neither of them suggests
that an ALJ must obtain an updated medical evaluation merely because new
information has been added to the administrative record since the previous
evaluation. In Barnett v. Barnhart, 381 F.3d 664 (7th Cir. 2004), the Seventh
Circuit reversed the decision of an ALJ who provided only a two-sentence
perfunctory discussion of a listing, never considered a physician’s opinion regarding
listing equivalence, and “simply assumed the absence of equivalency without any
relevant discussion.” Id. at 670-71. ALJ Davis’s evaluation of the evidence in the
record does not share these hallmarks. In Green v. Apfel, 204 F.3d 780 (7th Cir.
2000), the court stated that an ALJ is required to summon a medical expert if “that
is necessary to provide an informed basis for determining whether the claimant is
disabled.” Id. at 781.

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Other than the general assertion that an ALJ must summon a medical expert
to testify at the hearing when there is new documentation that did not exist and
could not have previously been considered by a medical expert earlier in the
administrative process—an assertion that is not supported by case authority—the
Claimant does not attempt to demonstrate that the ALJ’s consideration and
evaluation of the new documentation was ill-informed or irrational. As discussed
above, the ALJ did evaluate the 2010 educational records, the documentation of the
Claimant’s continued medical care and treatment at Martindale Brightwood Health
Center, and the March 2011 school records. His determination that they continued
to reflect functioning largely influenced by whether the Claimant takes his
medication is consistent with Dr. Blake’s earlier expert evaluation. We find no
basis for reversing or remanding the ALJ’s decision solely because a psychologist
was not summoned to testify at the hearing.
Conclusion
For the reasons detailed herein, we AFFIRM the decision of the
Commissioner.
IT IS SO ORDERED.
_______________________________

09/24/2013
Date: _____________

SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Distribution:
All ECF-registered counsel of record via email generated by the court’s ECF system

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