FENDERSON v. COLVIN

Filing 19

ENTRY ON JUDICIAL REVIEW - For the reasons stated above, the Court REMANDS the Commissioner's final decision. (See Entry). Signed by Judge Tanya Walton Pratt on 12/16/2015.(MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DEBRA D FENDERSON on behalf of L.B.C.,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 1:14-cv-01821-TWP-TAB

ENTRY ON JUDICIAL REVIEW
Plaintiff, Debra D. Fenderson (“Fenderson”), on behalf of her minor child, L.B.C., requests
judicial review of the final decision of the Defendant, Carolyn W. Colvin, Acting Commissioner
of the Social Security Administration (“Commissioner”), wherein the Commissioner denied her
application for childhood supplemental security income (“SSI”) under Title XVI of the Social
Security Act (the “Act”). 42 U.S.C. §§ 423, 1381c. For the reasons stated below, the Court
REMANDS the Commissioner’s final decision.
I. BACKGROUND
A.

Procedural History
On May 10, 2011, Fenderson applied for SSI on behalf of L.B.C., alleging disability since

her date of birth, March 1, 2011. On October 6, 2011, her application was denied. On October
19, 2011, she applied for reconsideration and on July 25, 2012, her claim was denied upon
reconsideration. On September 18, 2012, Fenderson requested a hearing.

A hearing was held

before Administrative Law Judge Monica LaPolt (the “ALJ”) (Filing No. 12-2 at 36) on August
20, 2013. On September 7, 2013, the ALJ issued a decision that L.B.C. was not disabled. On
September 12, 2014, the Appeals Council denied Fenderson’s request for review of the ALJ’s

decision, thereby rendering it the Commissioner’s final decision.

On November 7, 2014,

Fenderson filed this action for judicial review of the ALJ’s decision pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3).
B.

Medical History
L.B.C. was born on March 1, 2011, and was a newborn/young infant when the application

for SSI was filed, and an older infant at the time of the ALJ’s decision. (Filing No. 12-2 at 19.)
See 20 C.F.R. § 416.92a(g)(2). The application alleged that L.B.C. suffers from mixed receptive
disorder, developmental delays, seizure disorder, sleep disorder, and failure to thrive.
L.B.C. was born premature, along with her twin sister, via cesarean section. She was kept
in the hospital for three weeks before going home. While in the hospital, L.B.C. underwent a head
CT which showed a diffuse cerebral abnormality worrisome for multifocal acute infarctions or
diffuse anoxic injury and possibly a tiny area of acute petechial type hemorrhage. Dr. Debra N.
O’Donnell (“Dr. O’Donnell”) documented that the CT scan raised some concern but noted that
L.B.C.’s physical examination revealed no asymmetry and noted that L.B.C. was making
improvements in feeding. On April 27, 2011, L.B.C. underwent an electroencephalogram (EEG)
study for evaluation for seizures. The EEG was “likely” normal for her age, with no overt
epileptiform discharges identified. However, it was noted that the possibility of a focal discharge
in the right central region could not be ruled out. Dr. O’Donnell noted that L.B.C. had no seizures
upon examination. In May 2011, Dr. O’Donnell diagnosed L.B.C. with probable complex partial
seizures. (Filing No. 12-7 at 5.)
In June 2011, when L.B.C. was three months old, Fenderson completed a questionnaire for
the Disability Determination Bureau and indicated that L.B.C. was having three to five seizures
per day despite taking Phenobarbital to prevent them. (Filing No. 12-6 at 19-21.) Additionally,

2

between July 2011 and February 2012, Fenderson kept a calendar accounting of L.B.C’s seizure
activity which totaled at least eighty-nine seizures in eight months.
In July 2011, when L.B.C. was four months old, Dr. Sandra Aspy noted that a recent change
in L.B.C.’s anti-seizure medication reduced the frequency of her seizures from daily to only two
times per week, each lasting about four minutes. (Filing No. 12-7 at 20.) In September 2011,
when L.B.C. was six months old, Dr. O’Donnell noted that L.B.C. was doing better, with seizures
one to two times per week or sometimes every other week.
In October 2011, when L.B.C. was seven months old, a Childhood Disability Evaluation
form was completed by a Social Security Reviewing Physician, Dr. Steven E. Roush (“Dr.
Roush”). Dr. Roush found that L.B.C. had a combination of impairments that were severe but did
not meet, medically equal, or functionally equal the Listing of Impairments-Child Listings
(“Listing”). He also noted that, although L.B.C. was having seizures once a week to every other
week, he believed L.B.C.’s seizure impairment “would improve when adequate [medication]
levels [were] maintained”. (Filing No. 12-7 at 86.)
On February 21, 2012, L.B.C. saw Dr. O’Donnell who noted that, while L.B.C. continued
to make good developmental progress, she had increased seizure frequency from once a week to
2-3 times per week. L.B.C. attended a consultative examination with Dr. Muhammad Saafir (“Dr.
Saafir”) on March 10, 2012. The neurological examination was grossly normal in terms of muscle
and power tone, and there were no gross or motor defects. Dr. Saafir stated a diagnostic impression
of seizure disorder, “not well on Phenobarbital.” A laboratory study subsequent to the examination
indicated that L.B.C.’s Phenobarbital level was sub-therapeutic.
On March 19, 2012, L.B.C. underwent a 24-hour video EEG. Dr. O’Donnell’s notes from
the EEG indicated normal results for L.B.C.’s age, with the exception of an occasional high voltage

3

proximal discharge during sleep. Further, Dr. O’Donnell’s notes reflected that, “[w]hile the
[discharges] may have some epileptiform characteristics, they were not definitive and their
association with sleep might suggest a more benign character.”
Subsequently, on March 26, 2012, L.B.C. saw Dr. O’Donnell again and reported “no
further seizure events at home”. Dr. O’Donnell noted that L.B.C.’s video EEG revealed “rare
frontal dominant sharp waves in sleep transitions that may be a normal variant”. Dr. O’Donnell
further noted that it was unclear whether “past events were truly seizure” but opined that the
resolution of clinical complaints and the EEG were both reassuring. She further noted that
L.B.C.’s sleep was poor and commented that Phenobarbital could create some hyperactivity and
sleep disturbance in toddlers. Dr.O’Donnell recommended taking L.B.C. off the medication since
L.B.C. was older.
In May 2012, L.B.C. underwent a Childhood Disability Evaluation which found that she
had a combination of impairments which were severe but did not meet, medically equal, or
functionally equal the Listings. (Filing No. 12-8 at 7-11.) The evaluation further found that L.B.C.
was less than marked in health and physical well-being due to her seizure disorder and limitations
of the upper and lower body.
On September 11, 2012, L.B.C. again saw Dr. O’Donnell, who noted that she was “seizure
free”. (Filing No. 12-9 at 26.) Nurse Practitioner, Janet Shockley’s, March 2013 progress notes
also indicate that L.B.C. continued to be “seizure free” without the antiepileptic drugs “for several
months”. However, at the ALJ hearing on September 7, 2013, Fenderson reported that L.B.C. was
still having seizures twice a month and had a seizure the same week as the hearing. (Filing No.
12-2 at 55.)

4

C.

The ALJ’s Decision
At step one, the ALJ determined that L.B.C. had not engaged in substantial gainful activity

since the application date of May 10, 2011. At step two, the ALJ determined that L.B.C. had the
following severe impairments: mixed receptive disorder, developmental delays, seizure disorder,
sleep disorder, and failure to thrive. At step three, the ALJ determined that L.B.C. did not have an
impairment or combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Specifically, the ALJ
determined that L.B.C’s history of seizure disorder did not met or medically equal Childhood
Listing 111.03 Nonconvulsive Epilepsy.
II. LEGAL STANDARD
A.

Disability Determination
For an individual under the age of eighteen to be eligible for SSI, a claimant must have a

“disability” as defined by 20 C.F.R. § 416.924. The Act defines child disability as a “medically
determinable physical or mental impairment, which results in marked and severe functional
limitations, and . . . 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). In determining whether a minor claimant is
disabled, the Commissioner employs a three-step sequential analysis: (1) if the claimant is
engaged in work that qualifies as substantial gainful activity, he is not disabled regardless of his
medical condition, age, education, or work experience; (2) if the claimant does not have a
medically determinable severe impairment or combination of impairments, he is not disabled; and
(3) if the claimant does not have an impairment that meets, medically equals, or functionally equals
a Listing or does not meet the twelve-month durational requirement, he is not disabled. 20 C.F.R.
§ 416.924(a). See also Murphy v. Astrue, 496 F.3d 630, 633 (7th Cir. 2007).

5

In considering whether a child’s impairment functionally equals a Listing, the ALJ
determines whether the claimant has an extreme limitation in one of the following domains or a
marked limitation in two of the following 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(a); 20 C.F.R. § 416.926a(b)(1). See also Giles ex rel. Giles v. Astrue, 483 F.3d 483, 487
(7th Cir. 2007). In determining whether such limitations exist, the ALJ must consider the
interactive and cumulative effects of all the impairments, regardless of the severity. 20 C.F.R. §
416.926a(a).
B.

Review of the Commissioner’s Final Decision
When the Appeals Council denies review, the ALJ’s ruling becomes the final decision of

the Commissioner. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009); Hendersen v. Apfel,
179 F.3d 507, 512 (7th Cir. 1999). Thereafter, in its review, the district court will affirm the
Commissioner’s findings of fact if they are supported by substantial evidence. 42 U.S.C. §
405(g)(2012); Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008); Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). Substantial evidence consists of “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Dixon, 270 F.3d at 1176;
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). See also Skinner v. Astrue, 478 F.3d 836,
841 (7th Cir. 2007) (noting that substantial evidence must be “more than a scintilla but may be less
than a preponderance.”).
In this substantial evidence determination, the district court does not decide the facts anew,
re-weigh the evidence, resolve conflicts, decide questions of credibility, or substitute the court’s
own judgment for that of the Commissioner. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir.

6

2008); Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Accordingly, if the
Commissioner’s decision is adequately supported and reasonable minds could differ about the
disability status of the claimant, the court must affirm the decision. Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008).
Ultimately, the sufficiency of the ALJ’s articulation aids the court in its review of whether
the Commissioner’s final decision was supported by substantial evidence.

See Stephens v.

Heckler, 766 F.2d 284, 287-88 (7th Cir. 1985) (“[t]he ALJ’s opinion is important not in its own
right but because it tells us whether the ALJ has considered all the evidence, as the statute requires
him to do.”). While, the ALJ need not evaluate every piece of testimony and evidence submitted
in writing, the ALJ’s decision must, nevertheless, be based upon consideration of all the relevant
evidence. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009); Carlson v. Shalala, 999 F.2d 180,
181 (7th Cir. 1993). In this vein, the ALJ may not discuss only that evidence that favors his
ultimate conclusion but must confront evidence that contradicts his conclusion and explain why
the evidence was rejected. Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995).
Further, the ALJ’s decision must adequately demonstrate the path of reasoning, and the
evidence must lead logically to the ALJ’s conclusion. Terry, 580 F.3d at 475; Rohan v. Chater,
98 F.3d 966, 971 (7th Cir. 1996). Indeed, to affirm the Commissioner’s final decision, “the ALJ
must build an accurate and logical bridge from the evidence to [his] conclusion.” Zurawski, 245
F.3d at 888-89; Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
III. DISCUSSION
Fenderson raises one issue on appeal. Specifically, she argues that the ALJ failed to
consider and evaluate the record evidence when deciding whether L.B.C. medically met or
medically equaled Listing 111.03 Nonconvulsive Epilepsy.

7

The ALJ’s relevant Listing determination regarding medical equivalence reads as follows:
The child claimant’s history of seizure disorder does not meet or medically equal
childhood listing section 111.03 Nonconvulsive epilepsy. The evidence does not
indicate the occurrence of more than one minor motor seizure per week, with
alteration of awareness or loss of consciousness, despite at least 3 months of
prescribed treatment in a child with an established seizure disorder.
(Filing No. 12-2 at 19.)
Fenderson argues that the ALJ’s one-sentence explanation for her medical equivalence
determination was perfunctory and did not mention or evaluate any record evidence that might
support a contrary conclusion. In particular, Fenderson notes that nowhere in the ALJ’s opinion
did the she mention or evaluate her seven-month calendar of L.B.C.’s seizure events.
The Commissioner responds that the ALJ’s opinion was sufficient because she minimally
identified the relevant Listing and provided some analysis. Further, the Commissioner points to
the ALJ’s recitation of the medical history in relation to the ALJ’s separate, functional equivalence
determination. Finally, the Commissioner points to other record evidence, albeit not cited by the
ALJ in her opinion, which ostensibly supports the ALJ’s medical equivalence determination. The
Court is not persuaded by the Commissioner’s arguments.
Any reading of the ALJ’s medical equivalence determination reveals an insufficient
discussion of the relevant evidence. Indeed, although the Commissioner may reasonably opine
what evidence the ALJ might have relied upon, the Court cannot determine from the ALJ’s one
sentence analysis what evidence the ALJ actually relied upon. As such, the Commissioner’s
arguments are nothing more than impermissible post hoc rationalizations, which the Court is not
permitted to consider. See Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010); Steele v. Barnhart,
290 F.3d 936, 941 (7th Cir. 2002) (“principles of administrative law require the ALJ to rationally
articulate the grounds for her decision;” and the Court, therefore, “confines [its] review to the

8

reasons supplied by the ALJ”); Hendricks v. Astrue, 1:08-CV-376-DFH, 2009 WL 648610, at *8
(S.D. Ind. March 11, 2009). Instead, the ALJ’s decision must adequately demonstrate the path of
reasoning, and the evidence must lead logically to the ALJ’s conclusion. Terry, 580 F.3d at 475;
Rohan, 98 F.3d at 971.
Further, as Fenderson persuasively asserts, the Court cannot tell from the ALJ’s minimal
reasoning whether the ALJ considered substantial record evidence that might support the opposite
conclusion, like Fenderson’s calendar. See Terry, 580 F.3d at 475 (noting that the ALJ’s decision
must be based upon consideration of all the relevant evidence); Diaz, 55 F.3d at 307 (noting that
the ALJ must evaluate evidence that contradicts her conclusion and explain why the evidence was
rejected).
Indeed, other courts evaluating nearly identical ALJ Step 3 determinations have similarly
found remand to be warranted under the circumstances. See, e.g., Barnett v. Barnhart, 381 F.3d
664, 670 (7th Cir. 2004) (concluding, in an Adult Listing case, that the ALJ’s two sentence Listing
determination was “inadequate” and warranted remand, noting that the ALJ “never affirmatively
determined how many seizures he believed [the claimant] actually experienced”); Collins v.
Barnhart, 533 F. Supp. 2d 809, 817-18 (N.D. Ill. 2008) (concluding, in an Adult Listing case, “[a]t
step three, the ALJ failed to discuss any of the objective medical evidence or explain how that
evidence demonstrated that claimant did not suffer from seizures more than once a month.”).
Accordingly, the Court considers remand to be appropriate in order for the ALJ to evaluate
and discuss the record evidence supporting her medical equivalence determination for Listing
111.03 Nonconvulsive Epilepsy, including any evidence that might support the opposite
conclusion.

9

IV. CONCLUSION
For the reasons stated above, the Court REMANDS the Commissioner’s final decision.

SO ORDERED.

Date: 12/16/2015

DISTRIBUTION:
Charles D. Hankey
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

10