United States District Court, N.D. Indiana, South Bend Division
LAUREN N. SMITH, on behalf of Q.D.S., a minor child, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
P. SIMON, JUDGE
Smith, on behalf of her son, appeals the Social Security
Administration's decision to deny application for Social
Security disability benefits. An administrative law judge
found that Smith's son, Q.D.S., was not disabled within
the meaning of the Social Security Act. Smith raises three
issues that she says support remand. Because I agree that the
ALJ applied the wrong standard in determining whether Q.D.S.
was disabled, I will reverse and remand the
November 19, 2013, Lauren Smith filed an application for
Supplemental Security Income on behalf of Q.D.S., a minor
child. Smith alleged a disability onset date of May 1, 2013.
The ALJ held a hearing on February 10, 2016. At the time of
the alleged onset date, Q.D.S. was six years old; at the time
of the hearing, Q.D.S. was eight. On April 29, 2016, the ALJ
found that Q.D.S. was not disabled since the alleged onset
date. The Appeals Council denied Smith's request for
ALJ's decision contains a thorough review of the facts
and medical evidence in this case, so I will not repeat them
here. In denying Q.D.S.'s application, the ALJ employed
the three-step sequential evaluation process for determining
whether a child is disabled. See 20 C.F.R. §
416.924(a). First, the ALJ found that Q.D.S. was not engaged
in substantial gainful activity. Id. §
416.924(b). Second, the ALJ considered whether Q.D.S.'s
impairments were severe, i.e., they did not significantly
limit his ability to perform basic work activities.
Id. § 416.924(c). At this step, the ALJ found
that Q.D.S. had several severe impairments, including
attention deficit hyperactivity disorder, oppositional
defiant disorder, and facial tics. Third, the ALJ considered
whether Q.D.S.'s impairments met, medically equaled, or
functionally equaled an impairment described in the
children's Listings found in 20 C.F.R. Part 404, Subpart
P, App. 1. Id. §§ 416.924(d), 416.925.
last step required the ALJ to consider Q.D.S.'s
functioning in six 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 oneself; and 6) health
and physical well-being. Id. § 416.926a(b)(1).
“Marked” limitations in two of the six domains,
or an “extreme” limitation in one domain, means
that a child is disabled. Id. § 416.924a(d).
The ALJ here found that Q.D.S. did not have
“marked” limitations in two domains and did not
have an “extreme” limitation in any domain. The
ALJ thus concluded that Q.D.S. was not disabled.
makes three arguments which she believes call for remand. It
is important to keep in mind that review of the
Commissioner's decision is limited. If an ALJ's
findings of fact are supported by “substantial
evidence, ” then I must affirm the decision.
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.” Skinner v. Astrue, 478 F.3d 836,
841 (7th Cir. 2007) (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
cannot re-weigh the evidence or substitute my judgment for
that of the ALJ. Id.
argues that the ALJ erred by inaccurately naming Q.D.S. a
“preschooler” during the relevant period and
applying the preschooler standard in his analysis evaluating
the six domain areas. As I will explain in a moment, this is
a critical error because Q.D.S. was never a preschooler
during the relevant period, but instead was a “school
age child” throughout this time.
event that a child's severe impairments do not meet or
medically equal any listing, Step Three of the three-step
sequential evaluation process requires the ALJ to assess the
child's functional limitations caused by the child's
impairments to determine functional equivalence. 20 C.F.R.
§ 416.926a(a). As noted earlier, there are six broad
areas of functioning, called “domains.”
Id. § 416.926a(b)(1)(i)-(vi). When evaluating a
child's ability to function in each domain, the ALJ is to
consider information that will help him answer certain
questions about “whether your impairment(s) affects
your functioning and whether your activities are typical of
other children your age who do not have
impairments.” Id. § 416.926a(b)(2)
(emphasis added). The inquiry is thus inherently comparative
with the reference point being children of the same age who
have no impairments.
making the appropriate comparison, the regulations provide
detailed explanations of what the ALJ is to consider in
assessing each domain. There is both a “general”
description of the types of activities that make up the
domain and a more specific description labeled “age
group descriptors.” In this specific age group
description, the regulations break down the activities that
children of defined age groups should be able to accomplish.
“Preschool children, ” which is defined as
children from age 3 to the attainment of age 6, are
distinguished from “school-age children, ” which
is defined as age 6 to the attainment of age 12.
E.g., id. § 416.926a(g)(2)(iii), (iv)
(providing examples of activities that constitute
“acquiring and using information” for preschool
versus school-age children). Obviously, school-age children
are expected to be more advanced than preschool children.
the ALJ cited both the “preschool children” and
“school-age children” standards for each of the
six domains. But only the school-age children standard was
appropriate to Q.D.S.'s evaluation. See Kline ex rel.
J.H.-K. v. Colvin, 2014 WL 69953, at *15 (N.D. Ill. Jan.
9, 2014) (“the claimant's age as of the time of the
decision governs in applying the regulations.”).
Although the Commissioner argues that this was essentially a
harmless error because the ALJ ultimately applied the correct
standard, I am not so sure. To illustrate this, I will
highlight just one of the six domains analyzed by the ALJ.
first domain that the ALJ analyzed, citing both standards, is
“acquiring and using information.” As the ALJ
explained, this refers to how well a child is able to acquire
or learn information and how well a child uses the
information he has learned. By way of examples, the
regulations provide that a preschooler without an impairment
should begin to learn and use the skills that will help him
read and write and do arithmetic when he is older. Some
examples include listening to stories, rhyming words,
matching letters, counting, sorting shapes, building with
blocks, painting, coloring, and using scissors. Preschoolers
should understand the order of daily routines and tell
stories. [A.R. at 31 (citing 20 C.F.R. §
that to the examples provided in the school-age child
description. Without an impairment, a school-age child should
be able to learn to read, write, and do math, and should be
able to discuss history and science. They should be able to
produce oral and written projects, solve math problems, take