DICKERSON v. COLVIN

Filing 15

ENTRY REVIEWING THE COMMISSIONER'S DECISION - Plaintiff K.D.,1 on behalf of J.D., a minor, appeals the denial of J.D.'s application for supplemental security income ("SSI") benefits. K.D. applied for benefits on J.D's behal f on June 25, 2013. [Filing No. 5-5 at 3.] The claim was initially denied in August 13, 2013, [Filing No. 5-4 at 2], and upon reconsideration on September 26, 2013, [Filing No. 5-4 at 10]. Administrative Law Judge ("ALJ") Albert Velazqu ez held a hearing on March 30, 2015, and issued a decision on April 17, 2015, concluding that J.D. was not disabled. [Filing No. 5-2 at 12-24.] The Appeals Council denied a request for review, rendering the ALJ's decision the final decision o f the Commissioner of the Social Security Administration ("Commissioner") for the purposes of this review. [Filing No. 5-2 at 2.] K.D. filed this action on behalf of J.D. under 42 U.S.C. § 405(g), requesting that the Court review th e ALJ's denial. [Filing No. 1 .] The Court can find no legal basis presented by K.D. to reverse the ALJ's decision that J.D. was not disabled during the relevant time period. Therefore, the decision below is AFFIRMED. Final judgment shall issue accordingly. (See Entry.) Signed by Judge Jane Magnus-Stinson on 6/19/2017.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
J. D., a minor, by his mother,
K.D.,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,
Defendant.

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No. 1:16-cv-02843-JMS-TAB

ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff K.D., 1 on behalf of J.D., a minor, appeals the denial of J.D.’s application for
supplemental security income (“SSI”) benefits. K.D. applied for benefits on J.D’s behalf on June
25, 2013. [Filing No. 5-5 at 3.] The claim was initially denied in August 13, 2013, [Filing No. 54 at 2], and upon reconsideration on September 26, 2013, [Filing No. 5-4 at 10]. Administrative
Law Judge (“ALJ”) Albert Velazquez held a hearing on March 30, 2015, and issued a decision on
April 17, 2015, concluding that J.D. was not disabled. [Filing No. 5-2 at 12-24.] The Appeals
Council denied a request for review, rendering the ALJ’s decision the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) for the purposes of this
review. [Filing No. 5-2 at 2.] K.D. filed this action on behalf of J.D. under 42 U.S.C. § 405(g),
requesting that the Court review the ALJ’s denial. [Filing No. 1.]

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To protect the minor claimant’s privacy pursuant to Federal Rule of Civil Procedure 5.2, the
Court will also refer to the plaintiff pursuing this action on J.D.’s behalf by her initials.
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I.
APPLICABLE STANDARD OF REVIEW
“Social security disability benefits are designed for disabled workers, but low-income
parents or guardians may obtain them on behalf of disabled children as well.” Keys v. Barnhart,
347 F.3d 990, 991 (7th Cir. 2003). For a child to be considered disabled, it must be shown that
the child “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).
“[S]ince disabled children generally do not have a work history, the structure of the
disability program for them is necessarily different from that for adults, except in cases in which
the child has a ‘listed impairment,’ that is, an impairment that would entitle the adult to disability
benefits without any further inquiry into his ability to perform his past work or some other work;
the child is treated the same in such a case.” Keys, 347 F.3d at 991-92 (citing 20 C.F.R. §
416.924(d)). If the child is “not so seriously disabled as is implied by being found to have a listed
impairment, then it must be determined whether [the child] is nevertheless severely limited in
functioning in specified areas of life activity such as concentration and communication.” Keys,
347 F.3d at 992.
To determine whether the child is disabled, the ALJ considers all relevant evidence and the
combined effect of any impairments on the child’s overall health and functioning. 20 C.F.R. §
416.924(a). The regulations set forth a three-step process for evaluating child disability claims.
20 C.F.R. § 416.924(a).

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At Step One, if the child is doing substantial gainful activity, as defined by the regulations,
the child is not disabled and the evaluation stops. 20 C.F.R. § 416.924(a)-(b). If the child is not
doing substantial gainful activity, the evaluation proceeds to Step Two. 20 C.F.R. § 416.924(a).
At Step Two, the ALJ considers the child’s physical or mental impairments to see if the
child has an impairment or combination of impairments that is severe. 20 C.F.R. § 416.924(a). If
the impairment or impairments are not severe, the child is not disabled and the evaluation stops.
20 C.F.R. § 416.924(a). If the impairment or impairments are severe, the evaluation proceeds to
Step Three. 20 C.F.R. § 416.924(a).
At Step Three, the ALJ considers whether the child has an impairment or impairments that
meets, medically equals, or functionally equals a listing. 20 C.F.R. § 416.924(a). If the child has
such an impairment and it meets the duration requirement, the child is disabled. 20 C.F.R. §
416.924(a). If the child does not have such an impairment, or if it does not meet the duration
requirement, the child is not disabled. 20 C.F.R. § 416.924(a).
A child’s impairments will functionally equal a listing if they result in either a “marked”
limitation in at least two of six enumerated domains of functioning or an “extreme” limitation in
at least one of the domains. Buckhanon ex rel. J.H. v. Astrue, 368 F. App’x 674, 679 (7th Cir.
2010) (citing 20 C.F.R. § 416.926a). The six domains are as follows: 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 “marked” limitation interferes “seriously” with a child’s ability to initiate,
sustain, or complete activities in the domain, and an “extreme” limitation interferes “very
seriously.” 20 C.F.R. § 416.926a(e)(2).

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This Court’s role in reviewing a disability decision is limited to ensuring that the ALJ
applied the correct legal standards and that substantial evidence supports the ALJ’s findings.
Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). “Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. (quotation omitted). 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). Moreover, “[a]n ALJ may not select and discuss only that evidence
that favors [his] ultimate conclusion, but must articulate, at some minimum level, [his] analysis of
the evidence to allow the [Court] to trace the path of [his] reasoning.” Diaz v. Chater, 55 F.3d
300, 307 (7th Cir. 1995).
If the ALJ committed no legal error and substantial evidence supports the ALJ’s decision,
the Court must affirm the denial of benefits. Otherwise, the Court must generally remand the
matter back to the SSA for further consideration; only under rare circumstances can the Court
actually order an award of benefits. See Briscoe v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005).
II.
RELEVANT BACKGROUND
J.D. was thirteen years old when K.D. filed an application for SSI benefits on his behalf in
June 2013. [Filing No. 5-5 at 3.] The application alleges a disability onset date of September 1,
2002. [Filing No. 5-5 at 3.] J.D. has been diagnosed with arteriovenous malformation (“AVM”).
[Filing No. 5-2 at 15.] 2
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The parties’ briefs detail facts about medical treatment that J.D. has received. [Filing No. 11;
Filing No. 14.] Because those facts implicate sensitive and otherwise confidential medical
information concerning J.D., the Court will simply incorporate the facts by reference herein and
articulate material facts as needed to resolve the parties’ arguments.
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Using the sequential evaluation set forth by the SSA, the ALJ issued a decision on April
17, 2015, finding as follows:
•

At Step One, the ALJ concluded that J.D. had not engaged in substantial gainful
activity since June 6, 2013. [Filing No. 5-2 at 15.]

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At Step Two, the ALJ concluded that J.D. had the severe impairment of AVM.
[Filing No. 5-2 at 15.]

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At Step Three, the ALJ concluded that J.D. did not have an impairment or
combination of impairments that met or medically equaled the severity of a listed
impairment. [Filing No. 5-2 at 15.] The ALJ indicated that there is no listing for
AVM, and that no medical opinion “establishes that the impairment medically
equals a listing section in Congenital Disorders that affect multiple body systems,
section 110.00, et seq.” [Filing No. 5-2 at 15 (original emphasis).]

•

The ALJ further determined that J.D. did not have an impairment or combination
of impairments that functionally equaled the severity of a listed impairment. [Filing
No. 5-2 at 15.] Specifically, the ALJ concluded that J.D. had the following: no
limitation in acquiring and using information, [Filing No. 5-2 at 19]; less than
marked limitation in attending and completing tasks, [Filing No. 5-2 at 20]; no
limitation in interacting and relating with others, [Filing No. 5-2 at 21]; less than
marked limitation in moving about and manipulating objects, [Filing No. 5-2 at 22];
no limitation in the ability to care for himself, [Filing No. 5-2 at 23]; and marked
limitation in health and physical well-being, [Filing No. 5-2 at 23].

•

Because of these findings, the ALJ concluded that J.D. was not disabled. [Filing
No. 5-2 at 24.]

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J.D. requested that the Appeals Council review the ALJ’s decision, but that request was
denied on August 15, 2016. [Filing No. 5-2 at 2.] That decision is the final decision of the
Commissioner for purposes of judicial review, and J.D. now seeks relief from this Court. [Filing
No. 1.]
III.
DISCUSSION
K.D. raises one challenge on appeal, but the Court will restructure it as two separate issues:
(1) whether the ALJ conducted an insufficient analysis of whether J.D.’s impairments met or
medically equaled a listing; and (2) whether the ALJ erred in his evaluation of K.D.’s statements
regarding J.D.’s functioning. [Filing No. 11 at 8.] The Court will address the issues accordingly.
A. Listing Section 110.00
K.D. argues that the ALJ “provides a two-sentence analysis as to why the severe
impairment of [AVM] does not meet or medically equal the severity of section 110.00,” and claims
that such analysis is inadequate under the law. [Filing No. 11 at 8-9.] She further claims that
“[t]he ALJ appears to be making an assumption that just because there were no medical opinions
about medical equivalency[, then] there was no way a listing could be met.” [Filing No. 11 at 9.]
K.D. argues that the ALJ never discusses what parts of J.D.’s body are affected by AVM, and
claims that “the ALJ did not base his analysis of whether the severe impairment functionally
equaled a listing on substantial evidence.” [Filing No. 11 at 9-10.]
In response, the Commissioner argues that K.D. does not identify which listing J.D.’s
impairments met or equaled, and claims she cites to no evidence showing that J.D. met or equaled
a listing. [Filing No. 14 at 8.] The Commissioner argues that the ALJ considered the listing section
111.00 for Congenital Disorders, and found that J.D. did not meet or equal any listing under that
section. [Filing No. 14 at 9 (original emphasis).] She argues that later in the decision, the ALJ
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gave great weight to four doctors, each of whom concluded that J.D. did not meet or equal a listing.
[Filing No. 14 at 9.]
K.D. did not file a reply brief.
“In considering whether a claimant’s condition meets or equals a listed impairment, an ALJ
must discuss the listing by name and offer more than [a] perfunctory analysis of the listing.”
Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015) (citations omitted). The listings set forth the
criteria for qualifying impairments. Id. (citing 20 C.F.R. § 404.1525(a)). “A claimant may also
satisfy a listing by showing that his impairment is accompanied by symptoms that are equal in
severity to those described in the Listing,” Minnick, 775 F.3d at 935 (citing 20 C.F.R. § 404.1526),
or, in the case of a minor, that the claimant functionally equals a listing, Brindisi ex rel. Brindisi
v. Barnhart, 315 F.3d 783, 795 (7th Cir. 2003). A determination of medical equivalence requires
an expert’s opinion on the issue. Minnick, 775 F.3d at 935 (citations omitted); 20 C.F.R. §
404.1526(c) (“When we determine if your impairment equals a listing, we consider . . . the opinion
given by one or more medical . . . consultants designated by the Commissioner”); SSR 96-6p, 1996
WL 374180, *3 (“[L]ongstanding policy requires that the judgment of a physician (or
psychologist) designated by the Commissioner on the issue of equivalence on the evidence before
the administrative law judge or the Appeals Council must be received into the record as expert
opinion evidence and given appropriate weight.”).
Section 110.00 of the Listing of Impairments deals with non-mosaic Down syndrome and
catastrophic congenital disorders. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. A child diagnosed with
non-mosaic Down syndrome is evaluated under Listing 110.06., whereas a child diagnosed with a
catastrophic congenital disorder is evaluated under Listing 110.08. 20 C.F.R. § Pt. 404, Subpt. P,
App. 1.

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Under Step Three, the ALJ first noted that there is no listing for AVM, and then indicated
that “there is no medical opinion in the medical evidence that establishes that the impairment
medically equals a listing in Congenital Disorders that affect multiple body systems, section
110.00, et seq.” [Filing No. 5-2 at 15 (original emphasis).] K.D.’s only challenge is that the ALJ
failed to provide a proper analysis of any listings under section 110.00. [Filing No. 11 at 9.] Her
argument is unavailing. First, although the ALJ provides a very short explanation regarding why
J.D.’s impairments do not meet or equal a listing, K.D. does not set forth any evidence that
demonstrates that J.D. medically equals a particular listing under section 110.00. It is K.D.’s duty
to demonstrate that J.D.’s impairments meet a listing, and the ALJ’s decision will be affirmed if it
is supported by substantial evidence. Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006).
Second, a determination of medical equivalence requires an expert’s opinion on the issue.
Minnick, 775 F.3d at 935. The ALJ in this case noted that there was no medical opinion that
indicated that J.D. met a particular listing. Later in the decision, the ALJ further explained that
four state agency consultants all opined that “while [J.D.’s] impairment was severe, it did not meet,
medically equal, or functionally equal the listings.” [Filing No. 5-2 at 18.] See Rice, 384 F.3d at
370 n.5 (“[I]t is proper to read the ALJ’s decision as a whole, and . . . it would be a needless
formality to have the ALJ repeat substantially similar factual analyses at [multiple] steps.”).
Accordingly, remand on this issue is not warranted.
B. Credibility Analysis
K.D. argues that the ALJ did not conduct a proper credibility analysis of her testimony.
[Filing No. 11 at 10.] She claims that “the ALJ discusses [K.D.’s] testimony in one paragraph
despite the lengthy testimony actually given.” [Filing No. 11 at 11.] K.D. claims that the ALJ

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failed to address parts of her testimony that she claims demonstrate J.D. has additional limitations
with respect to certain accommodations and his pain treatment. [Filing No. 11 at 12-13.]
In response, the Commissioner argues that the ALJ properly evaluated K.D.’s testimony
with respect to J.D.’s functioning, and discussed it throughout the decision. [Filing No. 14 at 11.]
The Commissioner claims that there were times that the ALJ set aside the state agency consultants’
findings and heightened the amount of limitation assessed because of K.D.’s testimony regarding
J.D.’s limitations and accommodations. [Filing No. 14 at 12.] The Commissioner further claims
that the ALJ did take into account J.D.’s difficulties with medications, and that some of those
findings also raised the degree of limitations assessed. [Filing No. 14 at 9.]
Because the ALJ “is in the best position to determine the credibility of witnesses,” Craft,
539 F.3d at 678, this Court must afford the ALJ’s credibility determination “considerable
deference,” overturning it only if it is “patently wrong,” Prochaska, 454 F.3d at 738. The absence
of objective evidence cannot, standing alone, discredit the presence of substantive complaints,
Parker v. Astrue, 597 F.3d 920, 922-23 (7th Cir. 2010), but when faced with evidence both
supporting and detracting from a claimant’s allegations, “the resolution of competing arguments
based on the record is for the ALJ, not the court[,]” Donahue v. Barnhart, 279 F.3d 441, 444 (7th
Cir. 2002). In “determining the credibility of the individual’s statements, the adjudicator must
consider the entire case record,” and a credibility determination “must contain specific reasons for
the finding on credibility, supported by the evidence in the case record.” Prochaska, 454 F.3d at
738.
The Court disagrees with K.D.’s position. Although the ALJ provided a short summary of
K.D.’s testimony, [see Filing No. 5-2 at 16], he also incorporated her testimony – particularly
dealing with J.D.’s capabilities, limitations, and pain – under each domain. For instance, under

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acquiring and using information, the ALJ credited K.D.’s testimony that J.D. was in 10th grade
and does well in school when discussing evidence that demonstrates that J.D. experienced no
limitation, [Filing No. 5-2 at 19]; under attending and completing tasks, the ALJ gave little weight
to the four physicians’ opinions indicating that J.D. had no limitation, in part because K.D. testified
that J.D. had difficulty focusing when his pain became severe, [Filing No. 5-2 at 20]; under
interacting and relating with others, the ALJ assigned little weight to two physicians’ opinions that
gave greater limitations because those opinions were not supported by other evidence, including
K.D.’s testimony that J.D. socializes at school two days a week and sometimes invites friends over
to the house, [Filing No. 5-2 at 21]; under moving about and manipulating, the ALJ gave little
weight to two physicians’ opinions indicating he had no limitation because those assessments
contradicted other evidence, including K.D.’s testimony that J.D. stays in bed if he is experiencing
pain, [Filing No. 5-2 at 22]; under caring for yourself, the ALJ credited K.D.’s testimony that J.D.
can engage in a number of activities that demonstrate that he can maintain independent care, [Filing
No. 5-2 at 23]; lastly, under health and physical well-being, the ALJ determined that J.D. has
“marked limitations,” noting that he experiences pain, although it is generally manageable with
over-the-counter medications, requires sclerotherapy when the pain and swelling intensify, misses
school excessively, and experiences chronic pain with flare-ups, [Filing No. 5-2 at 24].
K.D. also claims that the ALJ failed to take into account a “504 plan” that the school
prepared for J.D., but then cites to a letter from J.D.’s physician that provides a list of
recommended accommodations in order for J.D. to “access learning in the educational setting . . .
.” [Filing No. 5-10 at 35.] K.D. does not explain, and the Court fails to see, how these
recommendations alter the ALJ’s credibility findings given that the ALJ addressed and
incorporated into his decision actual accommodations that J.D. received based on K.D.’s

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testimony, the physicians’ opinions, and medical records. Moreover, J.D. does not explain how
the recommended accommodations demonstrate that J.D. is in fact more limited. Accordingly, the
Court finds no reason to remand the ALJ’s decision.
IV.
CONCLUSION
“The standard for disability claims under the Social Security Act is stringent.” WilliamsOverstreet v. Astrue, 364 F. App’x 271, 274 (7th Cir. 2010). “The Act does not contemplate
degrees of disability or allow for an award based on partial disability.” Id. (citing Stephens v.
Heckler, 766 F.2d 284, 285 (7th Cir. 1985)). “Even claimants with substantial impairments are
not necessarily entitled to benefits, which are paid for by taxes, including taxes paid by those who
work despite serious physical or mental impairments and for whom working is difficult and
painful.” Williams-Overstreet, 364 F. App’x at 274. Taken together, the Court can find no legal
basis presented by K.D. to reverse the ALJ’s decision that J.D. was not disabled during the relevant
time period.

Therefore, the decision below is AFFIRMED.

accordingly.

June 19, 2017
Date: _____________

Distribution:
Michael G. Myers
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
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Final judgment shall issue