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Waggoner v. Berryhill

United States District Court, N.D. Indiana, South Bend Division

September 10, 2018

TABITHA J. WAGGONER, on behalf of P.O.V., a minor, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Tabitha 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.


         The 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.

         This 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.


         Before 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).

         Waggoner 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.

         Waggoner's 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.

         The 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. § 416.926a(i)(2)(iii).

         The ALJ 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.]

         In 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 January 2015).

         The 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 improvement.

         There 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. ...

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