Binion v. Commissioner of the Social Security Administration

Filing 26

DECISION AND ORDER signed by Magistrate Judge David E Jones. IT IS HEREBY ORDERED that the Commissioner's decision is AFFIRMED. IT IS FURTHER ORDERED that this action is DISMISSED. IT IS ORDERED that the Clerk of Court enter judgment accordingly. (cc: all counsel, via US mail to Plaintiff)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
J.B.,
By next friend Patricia Peña,
Plaintiff,
v.

Case No. 17-CV-193

COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.

DECISION AND ORDER

Patricia Peña alleges that her minor son, J.B., is disabled because he suffers
from several mental impairments that seriously interfere with his functioning. She
sought supplemental security income on his behalf, but an administrative law judge
(ALJ) denied the application, finding that J.B.’s impairments did result in marked
or severe functional limitations. Ms. Peña now seeks judicial review of that decision.
Ms. Peña generally argues that the ALJ did not fully consider how J.B.’s
impairments affect his daily life. The Commissioner contends that the ALJ did not
commit an error of law in reaching his decision and that the decision is otherwise
supported by substantial evidence. For the reasons that follow, the Court agrees
with the Commissioner and therefore will affirm her decision denying J.B. disability
benefits.

I.

Background
J.B. was born on September 2, 2005. Transcript 35, ECF Nos. 15-2–15-12. On

June 29, 2012, J.B.’s mother, Patricia Peña, applied for supplemental security
income on his behalf. See Tr. 198–206 & 209–28. Ms. Peña alleged that J.B. was
disabled as of August 1, 2008, on account of attention deficit hyperactivity disorder
(ADHD) and a learning disorder. Tr. 219 & 223. After the Social Security
Administration (SSA) denied the application initially, Tr. 63–72, and upon
reconsideration, Tr. 73–84, Ms. Peña requested a hearing before an ALJ, see Tr.
110–15.
The administrative hearing was held on November 10, 2015, before ALJ
Brent Bedwell. Tr. 30–62. J.B. had a non-attorney representative at the hearing.
See Tr. 30–33, 107–09 & 194–96. At the time of the hearing, J.B. was in fourth
grade. Tr. 35. He was living in Milwaukee, Wisconsin, with his mother, older sister,
grandparents, and “dede.” Tr. 40 & 45. J.B. testified that he did “good” in school but
that he got in trouble for being bad, disrespecting his teacher, and running in the
hall. Tr. 35–37. He had several school friends and spent his free time playing with
his cousin. Tr. 35–36 & 42. Ms. Peña testified that her son struggled in school and
had many behavior problems, though he was doing better than the preceding
schoolyear. Tr. 48–50. She indicated that J.B. did not care about consequences and
that he had talked about hurting himself in the past. Tr. 55 & 57–58. Ms. Peña
described her son as being very defensive, angry, aggressive, and disrespectful. Tr.
52–53.

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The ALJ followed the three-step sequential evaluation process, and on
November 27, 2015, he issued a decision unfavorable to J.B. Tr. 9–29. The ALJ
determined that (1) J.B. had not engaged in substantial gainful activity since his
application date; (2) J.B. suffered from five “severe” impairments: ADHD, mood
disorder/depression, conduct disorder (impulse control and/or oppositional defiant
disorder), borderline intellectual functioning, and a learning disorder; and (3) J.B.
did not suffer from an impairment or combination of impairments that met,
medically equaled, or functionally equaled the severity of a presumptively disabling
impairment. See Tr. 12–25. Based on those findings, the ALJ concluded that J.B.
was not disabled.
Thereafter, the Appeals Council denied Ms. Peña’s request for review, see Tr.
1–7 & 314, making the ALJ’s decision the final decision of the Commissioner of
Social Security, see Loveless v. Colvin, 810 F.3d 502, 506 (7th Cir. 2016).
Ms. Peña filed this action as next friend of J.B. on February 13, 2017, seeking
judicial review of the Commissioner’s decision under 42 U.S.C. § 405(g). See
Complaint, ECF No. 1. The matter was reassigned to this Court after the parties
consented to magistrate judge jurisdiction. See Consent to Proceed Before a
Magistrate Judge, ECF Nos. 5 & 6 (citing 28 U.S.C. § 636(c) and Fed. R. Civ. P.
73(b)). The Commissioner has filed a brief in support of the ALJ’s decision.
Defendant’s Memorandum in Support of the Commissioner’s Decision, ECF No. 25.
Ms. Peña, who is proceeding without the assistance of counsel, has filed several
letters in support of her son’s appeal, see ECF Nos. 20, 22 & 23, as well as

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additional evidence she would like the Court to consider, see ECF Nos. 7, 12–13 &
16–17.
II.

Standard of Review
“Judicial review of Administration decisions under the Social Security Act is

governed by 42 U.S.C. § 405(g).” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011)
(citing Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010)). Pursuant to sentence
four of § 405(g), federal courts have the power to affirm, reverse, or modify the
Commissioner’s decision, with or without remanding the matter for a rehearing.
Section 205(g) of the Act limits the scope of judicial review of the
Commissioner’s final decision. See § 405(g). As such, the Commissioner’s findings of
fact shall be conclusive if they are supported by “substantial evidence.” See § 405(g).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th
Cir. 2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (other citations
omitted). The ALJ’s decision must be affirmed if it is supported by substantial
evidence, “even if an alternative position is also supported by substantial evidence.”
Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004) (citing Arkansas v. Oklahoma,
503 U.S. 91, 113 (1992)).
In reviewing the record, courts “may not re-weigh the evidence or substitute
[their] judgment for that of the ALJ.” Skarbek v. Barnhart, 390 F.3d 500, 503 (7th
Cir. 2004) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)).
Rather, reviewing courts must determine whether the ALJ built an “accurate and

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logical bridge between the evidence and the result to afford the claimant
meaningful judicial review of the administrative findings.” Beardsley v. Colvin, 758
F.3d 834, 837 (7th Cir. 2014) (citing Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir.
2003) and Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001)). The ALJ’s decision
must be reversed “[i]f the evidence does not support the conclusion.” Beardsley, 758
F.3d at 837 (citing Blakes, 331 F.3d at 569). Likewise, reviewing courts must
remand “[a] decision that lacks adequate discussion of the issues.” Moore, 743 F.3d
at 1121 (citations omitted).
Reversal also is warranted “if the ALJ committed an error of law or if the
ALJ based the decision on serious factual mistakes or omissions,” regardless of
whether the decision is otherwise supported by substantial evidence. Beardsley, 758
F.3d at 837 (citations omitted). An ALJ commits an error of law if his decision “fails
to comply with the Commissioner’s regulations and rulings.” Brown v. Barnhart,
298 F. Supp. 2d 773, 779 (E.D. Wis. 2004) (citing Prince v. Sullivan, 933 F.2d 598,
602 (7th Cir. 1991)). Reversal is not required, however, if the error is harmless. See,
e.g., Farrell v. Astrue, 692 F.3d 767, 773 (7th Cir. 2012); see also Keys v. Barnhart,
347 F.3d 990, 994–95 (7th Cir. 2003) (citations omitted).
III.

Discussion
Ms. Peña maintains that J.B. is disabled and that the Commissioner’s

decision to the contrary is not supported by substantial evidence and is contrary to
law and regulation. See Compl. p. 3.

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A. Legal framework
According to the Social Security Act, an individual under the age of eighteen
is “disabled” only 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.” See 42 U.S.C. § 1382c(a)(3)(C)(i).
ALJs use a three-step sequential evaluation process for evaluating child disability
claims. Under that process, a child is disabled if (1) he has not engaged in
substantial gainful activity since his alleged onset of disability; (2) he suffers from a
medically determinable impairment or combination of impairments that is severe;
and (3) his impairment or combination of impairments is of a severity to meet,
medically equal, or functionally equal the criteria of any impairment listed in the
Act’s regulations as presumptively disabling. See 20 C.F.R. § 416.924(a)–(d); see also
20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. B.
In determining whether an impairment functionally equals a listing, the ALJ
assesses its severity in six domains of the child’s functioning: “(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.” Jelinek v. Astrue, 662 F.3d 805, 810 n.2 (7th Cir.
2011) (citing 20 C.F.R. § 416.926a(b)(1)). “To functionally equal a listing, the ALJ
must find an ‘extreme’ limitation in one category or a ‘marked’ limitation in two
categories.” Jelinek, 662 F.3d at 810 n.2 (citing 20 C.F.R. § 416.926a(a), (e)(2)(i)).

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A marked limitation is one that “interferes seriously with [a child’s] ability to
independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2). A
child’s “day-to-day functioning may be seriously limited when [his] impairment(s)
limits only one activity or when the interactive and cumulative effects of [his]
impairment(s) limit several activities.” Id. A marked limitation “also means a
limitation that is ‘more than moderate’ but ‘less than extreme.’” Id. On a
standardized test, a marked limitation may be evidenced by “scores that are at least
two, but less than three, standard deviations below the mean.” Id.
An extreme limitation is one that “interferes very seriously with [a child’s]
ability to independently initiate, sustain, or complete activities.” 20 C.F.R.
§ 416.926a(e)(3). A child’s “day-to-day functioning may be very seriously limited
when [his] impairment(s) limits only one activity or when the interactive and
cumulative effects of [his] impairment(s) limit several activities.” Id. An extreme
limitation “also means a limitation that is ‘more than marked.’” Id. However, it
“does not necessarily mean a total lack or loss of ability to function.” Id. On a
standardized test, an extreme limitation may be evidenced by “scores that are at
least three standard deviations below the mean.” Id.
B. Legal analysis
Liberally construed, Ms. Peña appears to argue that the ALJ erred in
evaluating the severity of J.B.’s mental impairments at steps two and three of the
sequential evaluation process. The Court will address those arguments in turn, as

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well as the impact of the additional evidence Ms. Peña submitted in support of her
son’s disability claim.
1. Whether the ALJ erred in evaluating the severity of J.B.’s
impairments at step two
Ms. Peña claims that J.B. suffers from mood disorders, ADHD, separation
anxiety, depression, a sleeping disorder, anger issues, impulse control disorder, and
a learning disorder. See ECF Nos. 20 & 23. The ALJ determined at step two that all
but two of those impairments caused more than minimal functional limitations. See
Tr. 15. Though the ALJ did not mention separation anxiety or a sleep disorder, any
such error was harmless because he found at least one severe impairment and,
therefore, continued to the next step in the sequential evaluation process. See Arnett
v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012) (citing Castile v. Astrue, 617 F.3d 923,
927–28 (7th Cir. 2010)).
Moreover, Ms. Peña has not cited any evidence to support a separation
anxiety or sleep disorder diagnosis. Neither J.B. nor his mother testified about
these issues, and the medical records do not appear to reference any significant
limitations resulting from them. Ms. Peña also has failed to explain how these
alleged impairments affect J.B.’s functioning. Accordingly, the ALJ did not commit
reversible err in evaluating the severity of J.B.’s impairments at step two.
2. Whether the ALJ erred in evaluating the severity of J.B.’s
impairments at step three
Ms. Peña also appears to argue that the ALJ erred in finding that J.B.’s
mental impairments did not functionally equal the severity of a presumptively

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disabling impairment. She does not point to any specific error in the ALJ’s decision.
Rather, she generally claims that the ALJ failed to fully consider all of J.B.’s
impairments and the effects they have on his daily functioning, including: his
academic struggles, his behavior issues at school, his unpredictable and sometimes
dangerous conduct, his difficulty getting along with others, and his side effects from
medications. See ECF Nos. 20, 22 & 23.
In fact, the ALJ thoroughly discussed J.B.’s alleged impairments but
reasonably determined that they did not result in marked limitations in two of the
six domains of functioning or an extreme limitation in one domain. The ALJ based
his determination on a review of the entire record, including J.B.’s hearing
testimony, Ms. Peña’s hearing testimony, J.B.’s medical records, and J.B.’s school
records. The ALJ also considered all of the opinion evidence contained in the record.
See Tr. 15–25. While Ms. Peña understandably disagrees with how the ALJ weighed
this evidence, the ALJ’s step-three finding is undoubtedly supported by substantial
evidence.
Regarding academic issues, the ALJ found that J.B. suffered from a learning
disorder; was a grade level behind in math, reading, and writing; and received
special education services. His IQ, however, was consistently in the upper level of
borderline intellectual functioning or the low-average range. Tr. 367–68, 370 & 461.
J.B.’s individualized education program (IEP) reflects that, when focused, he tried
hard, did well with one-on-one instruction, and turned in his homework. Tr. 501.
Also, J.B.’s academic performance was significantly impacted by his excessive

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absenteeism. See Tr. 366, 417 & 501. Despite any academic struggles, Ms. Peña
testified at the hearing that J.B. had made progress since the previous year, Tr. 48–
50, and he was never held back in school.
The ALJ also acknowledged J.B.’s behavior issues. Specifically, the ALJ
recognized that J.B. had difficulty controlling his anger, got in trouble in school for
disrespecting his teachers and running in the hall, and engaged in dangerous
conduct (including starting a fire inside his mother’s bedroom, cutting a bus seat
with a pocket knife, and threatening to hurt himself and others). Ms. Peña,
however, testified that J.B.’s behavior problems had decreased compared to the
previous schoolyear, and she had received fewer calls home and requests for a
conference with the principal. Tr. 50. She further testified that J.B. listened more
and was a lot calmer when taking his medications. Tr. 51.
Despite Ms. Peña’s claims to the contrary, the ALJ reasonably determined
that J.B. had less than a marked limitation in interacting and relating with others.
The IEP team noted in June 2012 that J.B. did not have significant behavior
problems at school as long as he was medicated. Tr. 370 & 458. Likewise, J.B.’s
kindergarten and first-grade teachers indicated that J.B.’s issues playing
cooperatively with other children and making and keeping friends were less than
“serious.” Tr. 232 & 290. J.B. in fact testified that he had friends at school, he
played on a football team, and he spent his free time playing with his cousin. Tr.
35–36 & 42.

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The ALJ noted in his decision that J.B. was prescribed various medications
for his symptoms, including Vyvanse, Adderall, Focalin, Risperdal, and Clonidine.
Tr. 17. Ms. Peña alleges that these medications provided only temporary relief and
caused debilitating side effects, including suicidal thoughts. The record, however,
does not support her claims. During his psychiatric evaluation, J.B. did not have
any suicidal ideations. Tr. 393. Likewise, Ms. Peña testified at the administrative
hearing that the only side effect J.B. experienced was lack of appetite. Tr. 51. And,
to the extent Adderall did make J.B. more aggressive, he was no longer taking that
medication at the time of his hearing. Tr. 60.
Ms. Peña also alleges that J.B.’s impairments likely will result in long-term
functional limitations. Surely that is an unfortunate possibly. But it is also
irrelevant to this Court’s analysis. The relevant period in this case is the time
between the application date and the ALJ’s decision. If J.B.’s condition deteriorates,
he can always reapply for disability benefits.
In sum, the Court finds that the ALJ fully considered J.B.’s impairments and
the functional limitations resulting therefrom. His finding at step three that J.B.’s
impairments do not functionally equal the severity of a listed impairment is
supported by substantial evidence.
3. Whether remand is warranted based on the additional
evidence submitted by Ms. Peña
Ms. Peña submitted a number of documents in support of J.B.’s claim for
benefits, including: an IEP plan that began in February 2017 and a Behavioral
Intervention Plan completed in February 2017, ECF No. 7; a reevaluation notice
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and consent form that Ms. Peña signed in February 2017, ECF No. 12; a Conners
3™ – Parent Response Booklet completed in March 2018 and an IEP meeting
invitation dated March 2017, ECF No. 13; an Evaluation Report dated April 2017,
an IEP plan beginning in April 2017, and a Plan of Care for dated March 2017, ECF
No. 16; and various prescriptions and appointment reminders, ECF No. 17. Ms.
Peña, however, did not reference any of these documents in the letters she
submitted to the Court.
Nevertheless, the evidence does not warrant remand here. All of this
evidence post-dates the ALJ’s decision. Because the ALJ never had the opportunity
to consider the evidence, it cannot serve as the basis for reversal pursuant to
sentence four of 42 U.S.C. § 405(g). See Eads v. Sec’y of Health & Human Servs., 983
F.2d 815, 817–18 (7th Cir. 1993). Likewise, Ms. Peña has not requested a sentencesix remand. See § 405(g) (sixth sentence) (allowing federal court to remand a matter
to the Commissioner “upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding.”).
IV.

Conclusion
For all the foregoing reasons, the Court finds that the ALJ did not commit

reversible error in finding that J.B. was not disabled as of June 2012. The Court
therefore will affirm the ALJ’s decision denying Ms. Peña’s claim for disability
benefits on behalf of her minor son.

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NOW, THEREFORE, IT IS HEREBY ORDERED that the Commissioner’s
decision is AFFIRMED.
IT IS FURTHER ORDERED that this action is DISMISSED.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment
accordingly.
Dated at Milwaukee, Wisconsin, this 20th day of March, 2018.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge

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