United States District Court, N.D. Indiana, South Bend Division
TABITHA J. WAGGONER, on behalf of P.O.V., a minor, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
P. SIMON, JUDGE
Waggoner, on behalf of P.O.V., a child under the age of 18,
seeks judicial review of the Social Security
Administration's decision denying P.O.V.'s
application for Supplemental Security Income under Title XVI
of the Social Security Act. An administrative law judge found
that P.O.V. was not disabled within the meaning of the Social
Security Act. For all of the reasons that follow, I will
affirm the ALJ's decision.
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 P.O.V.'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 P.O.V. was not engaged
in substantial gainful activity. Id. §
416.924(b). Second, the ALJ considered whether P.O.V.'s
impairments were severe, i.e., they did not significantly
limit her ability to perform basic work activities.
Id. § 416.924(c). At this step, the ALJ found
that P.O.V. had several severe impairments, including
suspected left-sided cerebral palsy, a mixed
expressive-receptive language disorder, and chronic
constipation with overflow. Third, the ALJ considered whether
P.O.V.'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 is what is at issue in this appeal, and it required
the ALJ to consider P.O.V.'s functioning in six domain
areas: acquiring and using information, attending and
completing tasks, interacting and relating with others,
moving about and manipulating objects, caring for yourself,
and 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 P.O.V. did not
have “marked” limitations in two domains and did
not have an “extreme” limitation in any domain.
Thus, the ALJ concluded that P.O.V. was not disabled.
diving into the arguments, let's start with some basics
on what my role is in this process. It is not to determine
from scratch whether or not P.O.V. is disabled and entitled
to benefits. Instead, my review of the ALJ's findings is
deferential, to determine whether the ALJ applied the correct
legal standards and whether the decision is supported by
substantial evidence. Shideler v. Astrue, 688 F.3d
306, 310 (7th Cir. 2012); Castile v. Astrue, 617
F.3d 923, 926 (7th Cir. 2010); Overman v. Astrue,
546 F.3d 456, 462 (7th Cir. 2008). If substantial evidence
supports the Commissioner's factual findings, they are
conclusive. 42 U.S.C. §405(g). “Evidence is
substantial if a reasonable person would accept it as
adequate to support the conclusion.” Young v.
Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004).
“Substantial evidence” is more than a
“scintilla” of evidence, but it's less than a
preponderance of the evidence. Richardson v.
Perales, 402 U.S. 389, 401 (1971). So the review is a
light one. But of course, I cannot “simply rubber-stamp
the Commissioner's decision without a critical review of
the evidence.” Clifford v. Apfel, 227 F.3d
863, 869 (7th Cir. 2000).
raises one issue that she says calls for remand. She claims
that with respect to two functional domains -
“Interacting and Relating with Others” and
“Moving about and Manipulation of Objects” - the
ALJ improperly relied upon the peak levels of P.O.V.'s
improvement and thereby failed to acknowledge the periods
leading up to those peak levels of improvement, which she
says required more severe gradations. She argues that by
focusing on only the period after improvement, the ALJ
cherry-picked evidence toward the end of P.O.V.'s
treatment regimen. Because, as Waggoner argues, the ALJ's
determination is not an “all or nothing” inquiry,
there was substantial evidence to support a finding of
disability for at least part of the relevant time period.
first argument is that the ALJ erred in evaluating the
Interacting and Relating with Others functional domain by
analyzing only the period of time in which P.O.V. had seen
maximum improvement after speech and language therapy.
According to Waggoner, P.O.V. reached this point of maximum
improvement around January 2015, but in the period prior to
this date - from the alleged onset date of October 11, 2012
until January 2015 - P.O.V.'s functioning in this domain
was much worse, such that she had marked limitations.
Interacting and Relating with Others domain considers how
well a child is able to initiate and sustain emotional
connections with others, develop and use the language of the
community, cooperate with others, comply with rules, respond
to criticism, and respect and take care of others. It relates
to all aspects of social interaction at home, school, and the
community. The domain also considers the speech and language
skills that children need to speak intelligibly and to
understand and use the language of their community. 20 C.F.R.
§ 416.926a(i). The Social Security Regulations provide
myriad examples of limited functioning in this domain, but
for our purposes, some relevant examples include difficulty
communicating with others - for example, using verbal and
nonverbal skills to express onself, carrying on a
conversation, or asking others for assistance - and
difficulty speaking intelligibly or with adequate fluency.
Id. For preschool children (age 3 to 6), children
should be able to socialize with children and adults, develop
friendships with children their own age, use words to express
themselves, and speak clearly enough that listeners can
understand what they mean most of the time. Id.
identified the proper standard and found that P.O.V. had a
less than marked limitation in this domain. [A.R. at 24.] The
ALJ cited evidence that P.O.V. suffered from articulation
issues, which were confirmed by both a specialist and
P.O.V.'s mother, but the ALJ also observed that several
other pieces of evidence supported a less than marked
limitation. For example, the ALJ noted that P.O.V. was
cleared for kindergarten, no clinician found P.O.V.
unintelligible, and P.O.V. was able to communicate at the
hearing. In addition, the ALJ explained that P.O.V. had no
evidence of behavioral abnormalities, P.O.V. was able to
maintain appropriate eye contact with her examiners, P.O.V.
reported that she had a group of friends, enjoyed school, and
her parents reported that P.O.V. interacted appropriately
with her siblings. [A.R. at 25.] The ALJ ultimately
“agree[d] with the consultants' less than marked
limitation' opinion.” [Id.]
conducting her analysis of the evidence, the ALJ relied on a
significant amount of evidence from earlier time periods -
not just the time immediately prior to, or from, the hearing.
While it's true that some of the evidence cited by the
ALJ was from what appears to be relatively close in time to
the hearing or even from the hearing itself (P.O.V.'s own
reports and ability to communicate at the hearing, for
example), the ALJ also referred to important findings from
examinations that predate what P.O.V. says was the point in
time in which she saw significant improvement (up until
most notable piece of evidence is the ALJ's reference to
the consultant's opinion that P.O.V. had a less than
marked limitation in the Interacting and Relating with Others
domain. [A.R. at 25 (“the undersigned agrees with the
consultants' ‘less than marked limitation'
opinion”).] The ALJ had previously assigned it partial
weight. [A.R. at 21-22.] The consultant opinion to which the
ALJ referred is an opinion from August 19, 2013 in which the
consultative examiner found that P.O.V. had a less than
marked limitation in this particular domain. The examiner
concluded that P.O.V.'s speech errors are
“maturational” and that her speech imposes
“a less than marked limitation.” [A.R. at 86.]
The report also indicated that P.O.V.'s mother had noted
no problems interacting and relating to others and that
P.O.V. was “very friendly ... with good social
interactions and good eye contact.” [A.R. at 87.] This
is the examiner's report that ALJ was relying on, in
part, in making her findings for this domain. And this
evidence is from the period in which Waggoner claims P.O.V.
demonstrated a marked limitation and almost a year and a half
before Waggoner concedes that P.O.V. saw significant
were other pieces of evidence that were mentioned by the ALJ.
For example, the ALJ noted that P.O.V. was cleared for
kindergarten in a general education class. Indeed,
P.O.V.'s educational records show that P.O.V. was cleared
for a general education kindergarten program in November 2014
by Sarah Skurow, SNAP Special Education Teacher. [A.R. at
315.] Importantly, this evidence is from before January 2015
- a period that Waggoner argues constituted a period of
marked limitation. In addition, as the ALJ noted, no
clinician had ever described P.O.V. ...