SISSON v. SAUL

Filing 22

ENTRY REVIEWING THE COMMISSIONER'S DECISION - The Court can find no legal basis presented by R.S. to reverse the ALJ's decision that Z.P. was not disabled after January 6, 2016. Therefore, the decision below is AFFIRMED. Final judgment shall issue accordingly (See Entry). Signed by Judge Jane Magnus-Stinson on 10/15/2020 (Copy mailed per distribution list).(TMC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
Z.P., a minor, by his mother, R.S., 1

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Plaintiff,
vs.
ANDREW SAUL, Commissioner of the Social
Security Administration,
Defendant.

No. 4:19-cv-00207-JMS-DML

ENTRY REVIEWING THE COMMISSIONER'S DECISION
Plaintiff R.S., on behalf of Z.P., her minor son, appeals the termination and denial of
supplemental security income ("SSI") benefits.

On June 4, 2012, the Social Security

Administration ("SSA") found that Z.P. was disabled due to social and cognitive developmental
delays and granted benefits effective January 1, 2012. [See Filing No. 7-2 at 18-21.] However,
on January 6, 2016, the SSA determined that Z.P. was no longer disabled because of medical
improvement and terminated his benefits. [Filing No. 7-5 at 2.] That determination was upheld
on reconsideration. [Filing No. 7-5 at 32.] Administrative Law Judge Dwight D. Wilkerson (the
"ALJ") held a hearing on April 11, 2018. [Filing No. 7-2 at 46-70.] The ALJ issued a decision on
October 15, 2018, concluding that Z.P.'s disability ended as of January 6, 2016, and that he is not
otherwise disabled. [Filing No. 7-2 at 18-42.] The Appeals Council denied a request for review,
[Filing No. 7-2 at 4-7], rendering the ALJ's decision the final decision of the SSA for purposes of
judicial review. 20 C.F.R. § 404.981. R.S., proceeding pro se, filed this action on behalf of Z.P.

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To protect the minor claimant's privacy pursuant to Fed. R. Civ. P. 5.2, the Court uses the minor's
and his mother's initials only.
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pursuant to 42 U.S.C. § 405(g), asking the Court to review the ALJ's decision. [Filing No. 1.]
I.
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). A child's continued eligibility for benefits must be reviewed periodically. 20
C.F.R. § 416.994a(a). All submitted evidence will be considered and decisions will be made "on
a neutral basis, without any initial inference as to the presence or absence of disability being drawn
from the fact that [the child has] been previously found disabled." 20 C.F.R. § 416.994a(a)(2).
To decide whether a child's disability continues or has stopped, the SSA uses a five-step
process. 2 20 C.F.R. § 416.994a(b). First, it must be determined whether there has been medical
improvement in the child's impairment or impairments since the last favorable decision. 20 C.F.R.
§ 416.994a(b)(1). If there has been no medical improvement, the child is still disabled. Id.
If there has been medical improvement, the second step is to determine whether the
impairment or impairments still meet or equal the severity of the listed impairment that was met
or equaled before. 20 C.F.R. § 416.994a(b)(2). If the impairment or impairments still meet or
equal the severity of that listed impairment, the child is still disabled. Id.

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In his opinion, the ALJ refers to a three-step process. This is the same standard, although the
Court will trifurcate the analysis that the ALJ terms "step three" into three separate steps (steps
three, four, and five) in the interest of clarity.
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If the impairment no longer meets or equals the severity of the listed impairment previously
met, the third step is to determine if the child is currently disabled. 20 C.F.R. § 416.994a(b)(3).
In making that determination, all impairments the child now has will be considered.

Id.

Specifically, it must be determined whether the child's current impairment or impairments are
severe. Id. If the impairments are not severe, the child is no longer disabled. Id.
If the current impairments are severe, the fourth step is to determine whether they meet or
medically equal the severity of a listed impairment. 20 C.F.R. § 416.994a(b)(3)(ii). If the child
meets or medically equals a listed impairment, the child will be considered disabled. Id.
If the child does not meet or medically equal a listing, the fifth step is to determine if the
child's condition "functionally equals" a listing. 20 C.F.R. § 416.994a(b)(3)(iii). To determine if
a child's impairment or combination of impairments functionally equals a listing, the child's
functioning must be assessed in terms of six broad functional areas or "domains" intended to
capture all of what a child can and cannot do: (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).
Generally, a child establishes functional equivalence to a listing by showing "'marked' limitations
in two domains of functioning, or an 'extreme' limitation in one domain." 20 C.F.R. § 416.926a(a).
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). If a child does not have marked limitations in at least two domains, or extreme
limitations in one domain, the child does not functionally equal a listing and is not disabled. 20
C.F.R. § 416.924a(d). But if a child's current impairment or impairments functionally equal a
listing, the child will be considered disabled. 20 C.F.R. § 416.994a(b)(3)(iii).

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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
order an award of benefits. See Briscoe v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005).
While an ALJ does have a heightened duty to develop the record when a claimant is
unrepresented by counsel, the claimant is not absolved of all responsibility for making the record.
Johnson v. Barnhart, 449 F.3d, 804, 808 (7th Cir. 2006). After all, "who is in a better position to
provide information about his own medical condition," than the party. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987). A court generally upholds the reasoned judgment of an ALJ on how much
evidence to gather, even when the claimant lacks representation. Nelms v. Astrue, 553 F.3d 1093,
1098 (7th Cir. 2009); Binion v. Shalala, 13 F.3d 243, 246 (7th Cir. 1994). "Mere conjecture or
speculation that additional evidence might have been obtained in the case is insufficient to warrant

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a remand." Binion, 13 F.3d at 246. In order to obtain a remand for failure to develop the record,
"a claimant must set forth specific, relevant facts—such as medical evidence—that the ALJ did
not consider." Nelms, 553 F.3d at 1098.
II.
RELEVANT BACKGROUND 3
Z.P. was born in February 2008 to R.S. [Filing No. 7-2 at 46.] R.S. first applied for SSI
benefits on behalf of Z.P. in April 2012, when Z.P. was four years old, alleging a disability onset
date of August 10, 2009. [Filing No. 7-6 at 2-10.] At that time, evaluations showed that Z.P.'s
"skills for attention and memory, and perception and concepts [were] below expected levels."
[Filing No. 7-7 at 5.] He was behind his peers in cognitive and personal-social development.
[Filing No. 7-7 at 15.] In June 2012, the SSA issued a decision finding Z.P. disabled as of January
1, 2012, because Z.P. met or equaled a listed impairment, namely that of organic mental disorder
under Listing 112.11. [See Filing No. 7-5 at 19-20.] Since the 2012 finding of disability, Z.P. has
been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and Oppositional
Defiant Disorder ("ODD") and has continued to exhibit behavioral problems, particularly in regard
to impulse control and socialization. [See Filing No. 7-10 at 2-96.] Z.P. has, however, performed
well at school, earning As and Bs, and he has an above-average IQ score. [Filing No. 7-2 at 59;
Filing No. 7-9 at 4; Filing No. 7-10 at 10-16.]
Z.P.'s eligibility for continued SSI benefits came up for review. At R.S.'s request, a hearing
was held on April 11, 2018 before the ALJ, at which both Z.P. and R.S. testified. [Filing No. 7-2
at 46-70.] After being advised of her right to representation, R.S. proceeded with the hearing

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The parties' briefs detail facts about medical treatment and counseling that Z.P. has received.
Because those facts implicate sensitive and otherwise confidential medical information concerning
Z.P., 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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unrepresented by counsel. [Filing No. 7-2 at 47; Filing No. 7-5 at 82.] R.S. maintained that Z.P.
remained disabled due to ADHD, developmental delay, learning disability, behavioral issues, and
ODD. [Filing No. 7-7 at 71.] The ALJ compiled documentary evidence, including medical,
treatment, evaluation, and educational records. [See Filing No. 7-2 at 39-42 (listing exhibits).]
Using the sequential evaluation set forth by the SSA, the ALJ issued a decision on October
15, 2018, finding as follows:
•

At Step One, the ALJ determined that the most recent decision favorable to Z.P.
was the June 4, 2012 decision finding Z.P. eligible for SSI benefits. [See Filing
No. 7-2 at 21.] At that time, Z.P. had a medically determinable impairment of
organic mental disorder, which was found to meet Listing 112.11 of 20 C.F.R.
Part 404, Subpart P, Appendix 1. [Filing No. 7-2 at 21.] The ALJ found that
Z.P. has experienced medical improvement in this impairment as of January 6,
2016. [Filing No. 7-2 at 22.]

•

At Step Two, the ALJ concluded that Z.P.'s mental disorder no longer meets or
medically equals the severity of Listing 112.11, and it has not since January 6,
2016. [Filing No. 7-2 at 23.]

•

At Step Three, the ALJ found that Z.P. currently suffers from the following
severe impairments: ADHD and ODD. [Filing No. 7-2 at 29.]

•

At Step Four, the ALJ concluded that Z.P.'s current impairments do not meet or
medically equal the severity of a listed impairment. [Filing No. 7-2 at 29.] The
ALJ specifically found that Z.P.'s impairments did not meet or equal Listing
112.11 (neurodevelopmental disorders) or Listing 112.08 (personality and
impulse-control disorders). [Filing No. 7-2 at 29.]

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•

At Step Five, the ALJ concluded that Z.P.'s impairments do not functionally
equal any Listings, as Z.P. has only one "marked" limitation in the six domains
and no "extreme" limitations. [Filing No. 7-2 at 38.]

Accordingly, the ALJ determined that Z.P.'s disability ended January 6, 2016, and that he has not
become disabled again since that date. [Filing No. 7-2 at 38.]
R.S., still proceeding pro se, filed an appeal, and the Appeals Council denied review on
July 6, 2019. [Filing No. 7-2 at 4.] As part of the appeal, R.S. submitted additional treatment and
educational records, but the Appeals Council determined this evidence did "not show a reasonable
probability that it would change the outcome of the [ALJ's] decision." [Filing No. 7-2 at 5.]
R.S. then filed a pro se Complaint with this Court seeking review on behalf of Z.P. [Filing
No. 1.] Under the heading "Statement of Claim," R.S. stated that "[t]here was new evidence and
documentation of new diagnosis that was not taken into consideration. There was a lot of new
paperwork brought forth." [Filing No. 1 at 3.] After the Commissioner filed the Record Transcript,
this Court ordered R.S. to file a brief in support of Z.P.'s claim within 28 days. [Filing No. 8.]
When more than 28 days passed without a brief, the Court entered a Show Cause Order requiring
R.S. to submit a brief by no later than February 10, 2020, or else the Court would dismiss the case
for failure to prosecute. [Filing No. 9.]
R.S. timely responded to the Show Cause Order on February 3, 2020 with a letter
apologizing for the delay and briefly stating that she disagreed with the Commissioner's decision
denying Z.P. benefits. [Filing No. 10.] The portion of the letter addressing the ALJ's decision
reads as follows:
I would like my sons (sic) case to be looked into further and not closed. He has
been disabled for his entire life. He started as an infant being developmentally
delayed and receiving occupational therapy and speech to help him hit his
milestones. I don't believe that he should have been found not disabled. He still
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currently has an IEP and is still having developmental and social issues. He does
receive special education services during school. The time that Social Security is
denying his benefits I want to point out was one of the most trying years for [Z.P.].
I have medical documentation as well as a new medical diagnosis because he had
been misdiagnosed all these years. He is now diagnosed with a disability that he
will have for the rest of his life.
[Filing No. 10.] The Court entered an Order stating that R.S. had discharged her obligations under
the Show Cause Order and allowed her additional time—until March 6, 2020—to file a separate
brief in support of her Complaint, but stated that if she did not file a separate brief, the Court would
construe her letter response to the Show Cause Order to be her brief. [Filing No. 11 at 1.]
The Court held a status conference on August 3, 2020, at which R.S. appeared. [Filing No.
19.] The Court entered an Order noting that "plaintiff has not filed any support for the appeal
beyond the complaint, despite multiple opportunities to do so," but nevertheless the Court granted
R.S. an additional 21 days—until August 24, 2020—to file a supporting brief. [Filing No. 19.]
R.S. did not file a supporting brief.
III.
DISCUSSION
Construing R.S.'s Complaint, [Filing No. 1], and letter, [Filing No. 10], broadly, R.S.'s
arguments can be summarized as follows: (1) the ALJ's decision failed to consider additional
evidence not in the record, and (2) the ALJ's decision is wrong because it is not supported by
substantial evidence. The Court addresses each argument in turn.
A.

"New" Evidence

R.S. contends that she "ha[s] medical documentation as well as a new medical diagnosis
because [Z.P.] had been misdiagnosed all these years. He is now diagnosed with a disability that
he will have for the rest of his life." [Filing No. 10.] R.S. did not submit any new evidence beyond
the supplemental treatment and educational records previously submitted to the Appeals Council.

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The Commissioner does not address this issue in his brief.
Sentence six of 42 U.S.C. § 405(g) authorizes courts to remand a case to the Commissioner
if "the claimant submits 'new and material evidence' that, in addition to the evidence already
considered by the ALJ, makes the ALJ's decision 'contrary to the weight of the evidence' in the
record." Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008) (quoting 20 C.F.R. § 404.970(b)).
However, "[m]edical evidence postdating the ALJ's decision, unless it speaks to the patient's
condition at or before the time of the administrative hearing, could not have affected the ALJ's
decision and therefore does not meet the materiality requirement." Id. at 484.
R.S. references a "new medical diagnosis" and a "misdiagnosis" in her letter brief but does
not submit any corresponding records. [Filing No. 10.] To the extent the referenced records reflect
new assessments of Z.P.'s impairments, even if documentation of such a diagnosis were in the
record, the proper recourse is to file a new application for benefits, not seek to revisit the current
application. See Getch, 539 F.3d at 484 ("If Mr. Getch has developed additional impairments, or
his impairments have worsened, since his first application for benefits, he may submit a new
application."). See also McFadden v. Astrue, 465 F. App'x 557, 560 (7th Cir. 2012) (evidence
which shows that an impairment has worsened "is not material because it does not describe [the
plaintiff's] condition in the period before the ALJ rendered her decision"). And, to the extent the
documentation referenced by R.S. weigh on Z.P.'s impairments during the relevant time period by
virtue of a misdiagnosis, the records are not before the Court, despite multiple opportunities for
R.S. to submit briefing with additional documentation.
Because the ALJ's decision is limited to Z.P.'s impairments at the time of the decision, any
new diagnoses or impairments are not properly part of this appeal. Instead, such new impairments
must be raised in a new application for benefits. Furthermore, R.S. has not submitted any

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additional records to the Court that relate to the relevant time period. Therefore, this Court finds
that the ALJ did not err by failing to consider new or additional evidence of Z.P.'s impairments, 4
and the Court will review the ALJ's decision based solely on the record evidence.
B.

Substantial Evidence

R.S. argues that she "do[es]n't believe that [Z.P.] should have been found not disabled. He
still currently has an IEP and is still having developmental and social issues." [Filing No. 10.]
The Commissioner responds that the ALJ's decision is supported by substantial evidence.
[Filing No. 17 at 9.] In particular, the Commissioner argues that the ALJ reasonably determined
that Z.P. had no limitation in the domain of acquiring and using information, [Filing No. 17 at 1012], less-than-marked limitation in the domain of attending and completing tasks, [Filing No. 17
at 13-14], and less-than-marked limitation in the domain of caring for oneself, [Filing No. 17 at
15-17].
"Substantial evidence" is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995). The Court
"shall not reevaluate the facts, reweigh the evidence, or substitute [its] own judgment for that of
the SSA." Id. Here, the medical, treatment, evaluation, and educational records concerning Z.P.
support the ALJ's determination that Z.P.'s impairments did not qualify him as disabled, and R.S.
has not identified any specific determination by the ALJ that she believes is not supported by
substantial evidence. Instead, R.S. simply states that she disagrees with the ALJ's conclusion, [See
Filing No. 10], even though the Court has provided her ample opportunities to file a supporting
brief and instructed her to more explicitly set forth the bases for her appeal.

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To the extent R.S. is arguing that the ALJ erred by not sufficiently developing the record, R.S.
has not articulated such a claim with relevant facts and specificity, and this Court rejects such an
argument. See Nelms, 553 F.3d at 1098.
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The ALJ's decision thoroughly analyzes each of the six domains set forth in the SSA
regulations and the corresponding evidence supporting the ALJ's conclusions as to each domain.
A review of the record shows there is substantial evidence to support the ALJ's conclusions as to
each of the six domains, including evaluations by teachers, medical records, treatment notes,
psychological evaluations, and testimony by R.S. and Z.P. Therefore, the Court finds that the
ALJ's findings are supported by substantial evidence.
IV.
CONCLUSION
For the reasons above, the Court can find no legal basis presented by R.S. to reverse the
ALJ's decision that Z.P. was not disabled after January 6, 2016. Therefore, the decision below is
AFFIRMED. Final judgment shall issue accordingly.

Date: 10/15/2020

Distribution via ECF to all counsel of record
Distribution via United States Mail to:
Rashawn S.
3907 Armstrong Ct., #4
Jeffersonville, IN 47130

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