United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE UNITED STATES DISTRICT COURT
Hall appeals the Social Security Administration's final
decision denying supplemental security income benefits for
D.D.P., her minor child. That denial is in a written decision
of an Administrative Law Judge, entered after a hearing at
which both D.D.P. and Heather appeared and
testified. [AR 20-35; AR 42-74.]
analysis of a claim for disability in a person under the age
of 18 involves a three-step process. 20 C.F.R.
§416.924(a). Because D.D.P. was not engaged in
substantial gainful activity, the ALJ proceeded to the second
step, which is consideration of whether D.D.P. had severe
physical or mental impairments. [Id.] The ALJ
determined that D.D.P. had five severe impairments: ADHD,
enuresis (involuntary urination), PTSD, encopresis (fecal
incontinence), and phonological disorder. [AR at 23.] At the
third step, a determination of disability depends on the
conclusion that one or more impairments “meet(s),
medically equal(s), or functionally equal(s)” the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 that conclusively establish disability. See 20
order to functionally equal the listings, a claimant's
impairments or combination of impairments must result in
“marked” limitations in two of the six
“domains of functioning” or an
“extreme” limitation in one domain. 20 C.F.R.
§416.926a. The “domains” are “broad
areas of functioning intended to capture all of what a child
can or cannot do.” Id. at
§416.926a(b)(1). Children applying for disability
benefits are compared to children of the same age who do not
have impairments. Id. at §416.926a(b). D.D.P.
was age five at the time of the application for benefits and
age seven at the time of his hearing before the ALJ.
be honest about it; the “domains” set out in the
regulations are pretty mushy. The ALJ must consider are how
the child (1) acquires and uses information; (2) how he
attends and completes tasks; (3) how he interacts and relates
with others; (4) how he moves about and manipulates objects;
(5) how he cares for himself; and (6) his overall health and
physical well-being. Id. at
§416.926a(b)(1)(i)-(vi). In assessing these qualities,
and given their subjective nature, the ALJ has a decided
advantage over a district judge since the ALJ gets to
actually talk with the child, albeit over video in this case.
It is for this reason that judicial review of an ALJ decision
should be - and is - limited.
ALJ's findings of fact are supported by
“substantial evidence, ” then they must be
sustained. See 42 U.S.C. § 405(g); Overman
v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008).
Substantial evidence consists of “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Nelms v. Astrue, 553
F.3d 1093, 1097 (7th Cir. 2009) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). In making a
substantial evidence determination, I must review the record
as a whole, but I can't re-weigh the evidence or
substitute my judgment for that of the ALJ. Overman,
546 F.3d at 462.
found that D.D.P. had marked limitation in the third domain,
interacting and relating with others. [AR at 30.] The appeal
in this case challenges the ALJ's determination that
D.D.P. had less than marked limitation in the second
domain-attending and completing tasks. [Id. at 29.]
Generally speaking, the regulations describe this domain as
one that relates to a child's ability to focus and
maintain attention, the ability to begin, carry through and
finish activities, the pace of performing activities and the
ease with which the child changes activities. 20 C.F.R.
§416.926a(h). As I mentioned above, applicants for
disability are compared to typically developing children. For
example, children between the ages of 3-6, as D.D.P. was at
the time of his application, should be able to sustain their
attention to play and learning activities and be able to
concentrate on things like putting a puzzle together and
completing art projects. They would also be expected to be
able to dress and feed themselves and put their toys away.
See 20 C.F.R. §416.926a(h)(2)(iii). For a child
who is between the ages of 6 - 12 they are obviously expected
to be more advanced in attending and completing tasks.
See 20 C.F.R. §416.926a(h)(2)(iv).
evidence of record contained conflicting medical opinions
concerning D.D.P.'s attention and ability to complete
tasks. As the ALJ noted, non-examining state agency
consultants Roush, Lovko, Thomas and McElhaney signed a
Disability Determination Explanation in November 2012 in
which they expressed a finding that D.D.P. had marked
limitation in the domain of attending and completing tasks.
[AR at 92.] In March 2013, other non-examining state agency
consultants (Quant-Callendar and Cobb) also opined that
D.D.P. was markedly limited in that domain. [AR at 83.] At
other times, non-examining consultants (Gaddy, Unversaw and
Hoke in one instance, and Roush, Clark and Thomas in another)
concluded that D.D.P.'s limitation in the domain of
attending and completing tasks was less than marked. [AR at
the record contains conflicting medical evidence, as it did
in this case, the Commissioner has the responsibility of
resolving the conflict. Murphy v. Astrue, 454
Fed.Appx. 514, 518 (7th Cir. 2012), citing
Diaz v. Chater, 55 F.3d 300, 306 n.2 (7th
Cir. 1995). This must ultimately be done by “giving
more weight to some evidence and less to others, ” for
reasons supported by substantial evidence. Young v.
Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004);
see also Latkowski v. Barnhart, 93 Fed.Appx. 963,
973-74 (7th Cir. 2004).
this backdrop of divided opinion, the ALJ considered the
opinion of consultative examiner Dr. Craig Nordstrom, who had
actually met with and evaluated D.D.P. in person. [AR at 29.]
Given the vague standards that guide the domain at
issue-attending and completing tasks-it seems to me that Dr.
Nordstrom had a decided advantage over the non-examining
consultants. And after interviewing Ms. Hall and testing and
observing D.D.P., Dr. Nordstrom reported that D.D.P.
“was able to attend and concentrate very
strongly.” [AR at 404.] Dr. Nordstrom also noted that
D.D.P. “was able to attend and concentrate quite well
during the administration of the WPPSI-III, ” a test of
cognitive ability for preschool age children. [AR at 405.]
According to Dr. Nordstrom, D.D.P. had a full scale I.Q. of
94, which placed him in the average range of functioning. [AR
at 404.] In administering the test, Dr. Nordstrom found that
D.D.P. “was able to attend and concentrate very
strongly.” [AR at 404.]
noted these and other aspects of Dr. Nordstrom's report,
and contrasted them with Ms. Hall's testimony. [AR at
29.] Relevant to this domain of functioning, the ALJ also
referenced notes of D.D.P.'s outpatient visit to Oaklawn
Psychiatric Center on December 16, 2013, reflecting that
D.D.P. (then age 6) answered questions appropriately, was
attentive for some of the interview, and had previously had a
good response to a drug called Focalin XR, used for treatment
of attention deficit hyperactivity disorder. [AR at 29, 474.]
re-weighing the evidence, I can't second-guess the
ALJ's conclusion that D.D.P.'s limitation in the area
of attending and completing tasks was less than marked. There
was evidence both ways, and the ALJ considered substantial
evidence of record to resolve the disagreement. Hall's
criticism that the ALJ gave insufficient consideration to the
comments of D.D.P.'s kindergarten teacher are effectively
answered by the Commissioner's observation that the ALJ
expressly gave “some weight” to Ms. Morris's
letter, even though as a teacher she was not an
“acceptable medical source” under applicable
regulations. [AR at 29; see 20 C.F.R.
§416.913(a)(2), 416.927(a)(2); SSR 06-03p.] Only
acceptable medical sources can give medical opinions for the
Commissioner's consideration, but information from other
sources such as school teachers can be used to show the
severity of an individual's impairment and how it affects
a child-claimant compared to children without the impairment.
20 C.F.R. §416.913(d); SSR 06-03p. Hall fails to
demonstrate that the ALJ's consideration of the
teacher's information was in error and requires reversal.
the ALJ's discussion of the issue now raised is not a
model of cogent and comprehensive analysis. But on this issue
I am not reviewing only the ALJ's explanation of her
conclusion. The “supported by substantial
evidence” standard is a deferential standard of review
under which I consider the record as a whole.
Overman, 546 F.3d at 462; Yurt v. Colvin,
758 F.3d 850, 856-57 (7th Cir. 2014). The ALJ
expressly considered evidence contrary to her ultimate
conclusion - the kindergarten teacher and Hall's
testimony as D.D.P.'s mother - but found it outweighed by
other evidence concerning D.D.P.'s response to medication
for hyperactivity and the report of Dr. Nordstrom based on
his examination of D.D.P. The decision provides enough
discussion to afford meaningful judicial review and permit an
assessment of the validity of the ALJ's ultimate
conclusion. Yurt, 758 F.3d at 856-57.
the ALJ sided with the examining medical
professional-Dr. Nordstrom-over the contrary assessments of
medical professionals who merely reviewed paperwork on D.D.P.
In doing so, the ALJ reasonably resolved the conflict by
reliance on the report of Dr. Nordstrom and evidence in the
medical record suggesting that ADHD medicine offered help in
that domain. I resist Hall's invitation to re-weigh the
evidence, and instead determine that the ALJ's decision
on the question raised by Hall's appeal is supported by
substantial evidence and that the ALJ built an accurate and