UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PASSION FOREMAN, )

on behalf of D.F., )

)

Plaintiff, )

)

v. ) No. 12 C 2345

)

MICHAEL J. ASTRUE, Commissioner ) Magistrate Judge Keys

of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This case is before the Court on a motion for summary

judgment by Passion Foreman, on behalf of her son D.F., a minor. 

Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks a reversal of the

Commissioner’s decision denying Supplemental Security Income

(“SSI”) to D.F., or alternatively, a remand to the Administrative

Law Judge (“ALJ”) below.1 The parties have consented to the

jurisdiction of this Court pursuant to 28 U.S.C. § 636(c). For

the reasons explained below, the motion is granted and the case

is remanded to the ALJ for further proceedings.

I. Procedural History

1

 Plaintiff filed a subsequent application for benefits on April 24, 2012. 

Plaintiff’s Motion at Exhibit A, page 1. That application was approved. Id.

Thus, this appeal is for a closed period of benefits, covering March 11, 2010

to May 1, 2012.

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On March 11, 20102, Plaintiff submitted a claim for SSI

benefits to the Social Security Administration (“SSA”), on behalf

of her minor child, alleging a disability onset date of January

27, 2010. Record at 135. In the claim, Plaintiff alleged that

D.F., who was born February 3, 2004, has borderline intellectual

functioning. R. 135. The SSA denied Plaintiff’s claim on May

12, 2010. R. 54. Plaintiff petitioned for reconsideration on

May 18, 2010. R. 58. In a decision letter dated July 7, 2010,

the SSA upheld the determination that D.F. did not qualify for

benefits. Id. 

On August 6, 2010, Plaintiff filed a written request for a

hearing before an ALJ. R. 63. Plaintiff subsequently sought the

assistance of counsel. R. 93. The hearing took place before ALJ

Allyn Brooks on July 21, 2011. R. 28. The ALJ issued a decision

on August 16, 2011, denying benefits. R. 14-24. Plaintiff then

sought review from the Appeals Council. R. 1. The Appeals

Council “found no reason” to review the ALJ’s decision, and

consequently denied the requested review. R. 3. This appeal

followed.

II. Factual Background

A. Kindergarten

2

 The record contains some inconsistency as to when Plaintiff submitted the

claim to the SSA. For example, both the ALJ’s report and the SSA’s Disability

Determination and Transmittal give the date as March 9, 2010. R. 14, 52-53. 

However, such a minor discrepancy does not affect the resolution of this case.

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In 2009, while attending Alessandro Volta Elementary School

in Chicago, D.F.’s kindergarten teacher referred D.F. for a

psychological evaluation. R. 199. Cesar Adrianzen, an evaluator

working for the Chicago Public Schools, conducted that evaluation

on January 25, 2010. Mr. Adrianzen found that D.F.’s cognitive

growth was “within the borderline range.” R. 200. D.F. could

use crayons to color shapes, point to parts of his body, and

identify basic shapes and primary colors. R. 199-200. However,

D.F. had “significantly low” socialization, below average

receptive vocabulary, and “significantly below” average

expressive vocabulary. R. 200. D.F. had an “inability to relate

to others.” R. 200. He only scored a 73 for Full Scale and

Permanent IQ, and 77 for Verbal IQ. R. 200. Mr. Adrianzen

ultimately concluded that D.F. did “not have the skills necessary

to participate in kindergarten.” R. 199.

Shortly after the evaluation, on January 27, 2010, D.F.

received an Individualized Education Program (“IEP”). R. 226. 

Each week, the IEP specifically prescribed 350 minutes of special

education time to work on language arts, 150 minutes for

mathematics, 85 minutes for social/emotional, 85 minutes for

independent functioning, 45 minutes for speech/language, and 14

minutes of social work, for a total of 729 minutes per week. R.

248. The special education time ultimately meant that D.F. was

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outside of his general classroom for special education services

for 42% of the school week. Id.

The IEP set out various accommodations and modifications to

D.F.’s education in the areas of language arts, math, physical

science, social science, independent functioning,

speech/language, health, social/emotional, and non-academics. R.

231. As examples of these modified goals, “[D.F.] will respond

with one word when spoken to 4/5 days” by April 2010. R. 236. 

“[D.F.] will identify, point, and write numbers 1-15, he will

succeed 3 out of 4 attempts” by November 2010. R. 244. Despite

these modified goals, he was still to “be graded using standard

classroom criteria in all subject areas.” R. 250.

To implement the IEP, D.F. transferred to Kilmer Elementary. 

R. 225. He began school at Kilmer on February 9, 2010. Id. The

school assigned Nicole Straube as his special education teacher. 

See R. 217.

In applying for benefits for D.F., Plaintiff filled out a

Function Report on March 11, 2010. R. 145. She indicated that

D.F. had no problems with vision and hearing. R. 146. He could

be understood “some of the time” both by family and strangers. 

R. 147. He could participate in conversation with other children

and ask for things that he wanted. R. 148. He could not tell a

made-up story or deliver simple messages. Id. He could count to

three, but not to ten. R. 149. He knew his age and most colors

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and shapes, but did not know his birthday or telephone number. 

Id.

In terms of physical abilities, Plaintiff indicated that

D.F. could catch a large ball and copy his first name, but that

he could not ride a tricycle, could not print at least some

letters, and could not use scissors. R. 150. He could eat with

utensils and put his toys away. R. 151. He required help to

dress himself and brush his teeth. Id. He also had problems

with bowel and bladder control. Id.

Finally, Plaintiff stated that D.F. only had minimal

behavioral impairments. He could share toys and take turns. R.

150. He showed affection towards his parents. Id. He could

also play pretend and physical games like tag and hide-and-seek. 

Id. However, he could not play board games like checkers or

Candyland. Id. His attention span was about 30 minutes. R.

151.

D.F. received an IEP report card on April 20, 2010. R. 255. 

Rachel Temkin, the school social worker, stated that D.F. seemed

“much more engaged and happy” in class. R. 255. He had “made

nice progress.” Id. Lauren Agruss, D.F.’s speech pathologist,

stated that D.F. was becoming more comfortable in class and was

“more willing to use his words to communicate.” Id. He had

likewise made “nice progress.” Id.

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As for academics, Ms. Straube, a special education teacher,

indicated that D.F. was “Making Expected Progress” in goals such

as writing letters, reading aloud, counting to 10, and expressing

his likes and dislikes. R. 255-256. He did “a great job”

answering questions, and was growing loud enough so that others

could hear his answers. R. 256. However, D.F. was “Not Making

Expected Progress” toward identifying and managing emotions. R.

256-257. 

On May 2, 2010, Ms. Straube completed a teacher

questionnaire regarding D.F. R. 210-217. In the domain of

Acquiring and Using Information, Ms. Straube indicated that D.F.

has one slight problem, five obvious problems, and three serious

problems. R. 211. She noted that “limited language skills make

academic functioning difficult for [D.F.].” Id. In the domain

of Attending and Completing Tasks, she noted only one slight

problem, and stated that D.F. “enjoys school and usually has

appropriate attention to tasks.” R. 212. 

In the domain of Interacting and Relating to Others, Ms.

Straube indicated that D.F. had four slight problems, two serious

problems, and two very serious problems. R. 213. The very

serious problems were “[r]elating experiences and telling

stories” and “[u]sing adequate vocabulary and grammar to express

thoughts/ideas in general, everyday conversation”; these problems

both occurred on an hourly basis (the shortest time-frame option

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listed on the form). Id. She further stated that D.F. had no

problems in the domains of Moving About and Manipulating Objects

and Caring for Himself. R. 214-215. She did not know of any

health problems that D.F. had or any medications that he was

taking. R. 216. Additionally, she commented that D.F. had

“recently begun to speak more and seem[ed] to have grown

comfortable” in class, but that he was “not functioning

academically at an age appropriate level.” R. 217.

The SSA had Dr. Terry Travis review D.F.’s condition on May

11, 2010.3

 R. 202. Dr. Travis opined that D.F.’s “[c]ognitive

growth was within the borderline range.” R. 201. Dr. Travis

noted that D.F.’s impairment was “severe, but does not meet,

medically equal, or functionally equal the listings.” R. 201. 

In Dr. Travis’s opinion, D.F. had a “Less Than Marked” limitation

in the domains of Acquiring and Using Information, Interacting

and Relating with Others, and Caring for Yourself. R. 203-204. 

Dr. Travis found that D.F. had “No Limitation” in Attending and

Completing Tasks, Moving About and Manipulating Objects, and

Health and Physical Well-Being. Id. Dr. Travis noted D.F.’s IQ

scores and Ms. Straube’s findings in her teacher questionnaire. 

R. 203.

3

 Dr. Travis apparently reviewed, at a minimum, Mr. Adrianzen’s psychological

evaluation and Ms. Straube’s questionnaire. However, he never met with D.F.

in person.

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After the SSA initially denied Plaintiff’s claim, Plaintiff

filled out a disability report for the SSA on May 18, 2010 for

the appeal. R. 172. Plaintiff indicated that D.F.’s condition

had not changed and that no new conditions had arisen. Id. She

stated that D.F. could not dress or bathe himself without help,

still soiled himself, and did not play with others. R. 174.

On May 18, 2010, Dr. David Gilliland, a psychologist with

the SSA, completed a disability evaluation form. R. 220. Dr.

Gilliland noted D.F.’s IQ and Ms. Straube’s questionnaire. R.

221-222. Dr. Gilliland agreed with Dr. Travis’ domain

assessments. R. 203-204, 221-222. Dr. Gilliland likewise

determined that D.F.’s borderline intellectual functioning was a

severe impairment that nevertheless did not meet or equal the SSA

listings. R. 219.

B. First Grade

The Chicago Public Schools issued to D.F. a new IEP on

January 12, 2011. R. 258-278. Under this IEP, D.F. no longer

needed accommodations, modifications, or special education goals

in independent functioning, health, social/emotional, and nonacademic. R. 231, 262. He no longer impeded his own or others’

learning. R. 232, 263. D.F.’s special education minutes for

language arts dropped from 350 to 240 per week. R. 248, 274. 

Speech/language dropped from 45 to 30 minutes per week. Id. 

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Nonetheless, D.F.’s time in special education increased. 

The new IEP greatly increased special education minutes for math,

from 150 to 820 minutes per week. R. 274. He was now spending

1,090 minutes per week in special education. R. 274. The new

IEP put D.F. outside of his general education classroom for about

63% of the school week. Id. The IEP also modified D.F.’s

grading in language arts. R. 276. A ‘D’ will be considered a

passing grade for D.F. in this subject. Id. For all other

subjects, he is to be graded on standard criteria. Id. The IEP

also notes that D.F. “is not yet reading in first grade. He is

not able to write a sentence.” Id.

On April 1, 2011, D.F. received another IEP Report Card. R.

279. Jashvanti Patel, his special education teacher at the time,

indicated that D.F. was “Making Expected Progress” towards all of

his goals. R. 279-280. D.F. had learned his numbers up to 40. 

R. 279. He could count to 100 by rote. Id. D.F. was speaking

less than he had, and spoke so softly that “[a]t times it becomes

difficult to understand him.” Id. According to speech

pathologist Irene Schatz, D.F. could visually identify letters. 

R. 280. He was always cooperative in class. Id. However, Ms.

Schatz also noted “some evidence of articulation errors that were

not previously reported.” Id.

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C. Hearing Before the ALJ

At the July 21, 2011 hearing, Plaintiff testified before the

ALJ. R. 35-50. She testified that D.F. was routinely pulled out

of class for lessons with a special education teacher. R. 36. 

He probably does not understand all of his school work even with

the special education measures. R. 38. Homework that should

have, in her opinion, taken D.F. 15 to 20 minutes actually took

him an hour with her help. R. 39. D.F. had many friends in his

special education class and was helpful with household chores. 

R. 43. D.F. could write his name and perform the most

rudimentary of addition, but he could not do subtraction. R. 43-

45. D.F. had only recently learned to say the alphabet. R. 46. 

He must attend summer school to catch up on his school work. R.

37.

Plaintiff testified that, although D.F. was seven years old,

he still could not tie his shoes and often wets the bed. R. 41-

42. He had no behavioral problems. R. 46. He began stringing

words together into simple sentences when he was around 2 or 3

years old. R. 47. He had no health problems. R. 50.

D.F. also testified before the ALJ. R. 32-34. However,

most of the responses to the ALJ’s questioning resulted in “No

audible response.” See R. 32-33. Based on the ALJ’s responses,

it seems that D.F. had trouble remembering the name of his

school, what year of school he was in, and his age. R. 32-33.

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No medical expert was present at the hearing. R. 1.

D. The ALJ’s Decision

After the July 21, 2011 hearing, the ALJ made the following

findings of fact in a decision dated August 16, 2011: D.F. was

born on February 3, 2004, and was therefore classified as a

preschooler when the application was filed. R. 17. D.F. had

“not engaged in substantial gainful activity since” the

application was filed. Id. D.F. has “borderline intellectual

functioning,” which, while causing more than a “minimal

functional limitation,” nonetheless does not rise to the level of

an impairment for SSA purposes. Id. The ALJ ultimately

concluded that D.F. “does not have an impairment or combination

of impairments that meets or medically equals” or that

“functionally equals the severity of the listings” of the SSA. 

Id.

Specifically regarding D.F.’s impairment, the ALJ found that

D.F. has a “less than marked limitation in acquiring and using

information.” R. 19. He “has no limitation in attending and

completing tasks.” R. 20. He “has less than marked limitation

in interacting and relating with others.” R. 21. He “has no

limitation in moving about and manipulating objects.” R. 22. He

“has less than marked limitation in the ability to care for

himself.” R. 23. Finally, he has “no limitation in health and

physical well-being.” R. 24.

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While the ALJ acknowledged that D.F. has some sort of

learning impairment, his findings indicated that D.F.’s troubles

do not rise to the level of a disability for the purposes of the

Social Security Act. Id. This determination was apparently

bolstered by the fact that D.F. was not being treated with

medication or any “other medical modality” and that the special

education classes “seemingly ha[ve] helped” D.F. with his

impairments. R. 18. Thus, the ALJ reckoned that D.F.’s

“impairments are mild enough to be controlled with some

additional attention at school, through special education . . .

and perhaps other nonaggressive forms of treatment.” Id.

III. Standard of Review

Under 42 U.S.C. § 405(g), this Court has the authority to

review final determinations made by the SSA. The Court must not

engage in its own analysis of whether Plaintiff is disabled, and

may not “reweigh evidence, resolve conflicts in the record,

decide questions of credibility, or, in general, substitute [its]

own judgment for that of the Commissioner.” Young v. Barnhart,

362 F.3d 995, 1001 (7th Cir. 2004). Rather, the Court must

review only whether the ALJ applied the correct legal standard

and whether substantial evidence supports the ALJ’s

determination. Schoenfeld v. Apfel, 237 F.3d 788, 792 (7th Cir.

2001). Substantial evidence means "such relevant evidence as a

reasonable mind might accept as adequate to support a

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conclusion." Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.

2004).

In making this determination, the court must “look to

whether the ALJ built an ‘accurate and logical bridge’ from the

evidence to [his] conclusion that the claimant is not disabled.” 

Simila v. Astrue, 573 F.3d 503, 513 (7th Cir.2009) (quoting Craft

v. Astrue, 539 F.3d 668, 673 (7th Cir.2008)). Where the

Commissioner's decision “lacks ‘evidentiary support or is so

poorly articulated as to prevent meaningful review,’ a remand is

required.” Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th

Cir.2009) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th

Cir.2002)).

A child is disabled within the meaning of the Social

Security Act if he has a “physical or mental impairment, which

results in marked and severe functional limitations, and which

has lasted or can be expected to last for a continuous period of

not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(I).

A child must meet three conditions before he is considered

to be disabled. First, he must not be engaged in “substantial

gainful activity.” 20 CFR 416.924(b). Second, he must have an

impairment that is “severe,” i.e. causing “more than minimal

functional limitation.” 20 CFR 416.924(c). Finally, his

impairment must meet, medically equal, or functionally equal in

severity an impairment listed on the SSA’s Listing of

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Impairments. 20 CFR 416.924(d). The parties only dispute this

final step.

IV. Analysis

Plaintiff contends that the ALJ erred in two principle ways. 

First, the ALJ’s decision was not based on substantial evidence. 

Pl. Motion at 5. Second, the ALJ committed legal error by

substituting his opinion for that of a qualified medical expert,

in violation of Social Security Ruling (SSR) 96-6p. Id. 

A. The ALJ Failed to Properly Analyze Listing 112.02.

Plaintiff argues that the ALJ erred by not finding that

D.F.’s impairments meet, medically equal, or functionally equal

SSA Listing 112.02 for Organic Mental Disorders. Plaintiff

alleges that the ALJ’s decision was not based on substantial

evidence in the record as he did not discuss the special

education curriculum that D.F. was participating in or the IEP

reports, and, Plaintiff suggests that the ALJ selectively chose

from teacher questionnaires to only discuss evidence that

supported his findings. Defendant, however, claims that the ALJ

discussed adequate evidence to support his findings and points

out that the ALJ is not required to discuss every piece of

evidence in his decision.

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Social Security Regulation C.F.R. § 416.924 provides that a

child’s impairment(s) must meet, medically equal or functionally

equal a listing in order for the child to be found disabled. 20

C.F.R. 416.924(d). Listing 112.02 states that a child meets the

listing for Organic Mental Disorders if he or she shows both:

A. Medically documented persistence of at least one of

the following:

1. Developmental arrest, delay or regression; or

2. Disorientation to time and place; or

3. Memory impairment, either short-term (inability to

learn new information), intermediate, or long-term

(inability to remember information that was known 

sometime in the past); or

4. Perceptual or thinking disturbance (e.g., 

hallucinations, delusions, illusions, or paranoid 

thinking); or

5. Disturbance in personality (e.g., apathy, 

hostility); or

6. Disturbance in mood (e.g., mania, depression); or

7. Emotional lability (e.g., sudden crying); or

8. Impairment of impulse control (e.g., disinhibited 

social behavior, explosive temper outbursts); or

9. Impairment of cognitive function, as measured by 

clinically timely standardized psychological 

testing; or

10. Disturbance of concentration, attention, or 

judgment;

AND

B. 2. For children (age 3 to attainment of age 18),

resulting in at least two of the following:

a. Marked impairment in age-appropriate cognitive/ 

communicative function, documented by medical 

findings (including consideration of historical 

and other information from parents or other 

individuals who have knowledge of the child, when 

such information is needed and available) and 

including, if necessary, the results of 

appropriate standardized psychological tests, or 

for children under age 6, by appropriate tests of 

language and communication; or

b. Marked impairment in age-appropriate social 

functioning, documented by history and medical 

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findings (including consideration of information 

from parents or other individuals who have 

knowledge of the child, when such information is 

needed and available) and including, if necessary,

the results of appropriate standardized tests; or

c. Marked impairment in age-appropriate personal 

functioning, documented by history and medical 

findings (including consideration of information 

from parents or other individuals who have 

knowledge of the child, when such information is 

needed and available) and including, if necessary,

appropriate standardized tests; or

d. Marked difficulties in maintaining concentration, 

persistence, or pace.

20 C.F.R. Pt. 404, Subpt. P, Appendix 1.

In order to functionally equal a listed impairment, D.F.’s

impairments must result in a “marked” limitation in two, or an

“extreme” limitation in one, of the following six domains:

acquiring and using information, attending and completing tasks,

interacting and relating with others, moving about and

manipulating objects, caring for oneself, and health and physical

well-being. 20 CFR 416.926a(a) & (b)(1).

In the ALJ’s decision, he stated that, after considering the

evidence of record, including the mother’s statements, he found

that “the claimant’s impairments are mild enough to be controlled

with some additional attention at school.” R. 18. The ALJ also

discussed the six functional equivalence domains, in which he

considered evidence from a Functional Report filled out by

Plaintiff, the January 2010 psychological evaluation, and select

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teacher notes. R. at 19-24. Ultimately, the ALJ found that D.F.

is not functionally limited in any of the six domains.

Plaintiff alleges multiple errors that affect the ALJ’s

findings. First, Plaintiff argues that the ALJ failed to mention

the nature and extent of D.F.’s special education. Conversely,

Defendant asserts that the ALJ did both recognize and discuss

D.F.’s need for special education. Df. Response at p. 6. An ALJ

“does not meet the minimal level of articulation required” where

he fails to discuss an entire line of evidence. Green v.

Shalala, 51 F.3d 96, 101 (7th Cir. Ill. 1995) (citing Carlson v.

Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (per curiam)). Here,

the only time that the ALJ mentioned special education is to say

that D.F.’s mother “has stated that the claimant is not able to

progress in school and is in need of special education.” R. 18. 

At no point did the ALJ discuss how long D.F. spent in special

education each week or in what areas the special education

focused. The ALJ also did not discuss the modifications that

D.F. received to his grades and tasks, either in general or as to

how such changes compare to the tasks of D.F.’s non-impaired

peers, in contravention of 20 CFR § 416.926a(f)(1). Given the

vast evidence in the record from D.F.’s special education

teachers and therapists, the ALJ’s mere mentioning of the

mother’s opinion that the child is in need of special education

does not meet the minimum level of articulation of this line of

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evidence required by the ALJ in order to evaluate whether D.F.

meets or functionally equals the standards set forth in the

C.F.R.

Next, Plaintiff claims that the ALJ erred by not mentioning

D.F.’s IEP reports. Defendant, on the other hand, claims that

the ALJ was not required to do so. While Defendant is correct

that the ALJ need not discuss every piece of evidence, the ALJ is

required to “at least minimally discuss a claimant's evidence

that contradicts the Commissioner's position.” Godbey v. Apfel,

238 F.3d 803, 808 (7th Cir. Ill. 2000). In this case, the ALJ

never once mentioned the IEP reports, or specifically the 2011

IEP report with its modified grading and increased special

education minutes, which show D.F.’s limitations. In rendering

his or her decision on a disability, an ALJ must consider all

relevant evidence in the case record, which includes opinion

evidence from “other sources.” SSR 06-03p, 71 Fed.Reg. 45593-03,

at *45596. “Other sources” includes “educational personnel, such

as school teachers, counselors, early intervention team members,

developmental center workers, and day center workers.” Id. at

*45594. In this case, the IEP reports are relevant evidence and

the ALJ should have considered and discussed them in his

decision.

Additionally, the ALJ selectively credited certain portions

of the 2010 teacher questionnaires, while ignoring others. An

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ALJ must “explain why he gave no weight to the portions of the

school documents which support a finding that [a claimant] is

disabled.” Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007). 

Here, the ALJ relied primarily (and at times, solely) on reports

from D.F.’s teacher. For example, in assessing the Attending and

Completing Tasks domain, the ALJ cited to the school report to

say that D.F. “had slight difficulties with his ability to work

without distracting others.” R. 20. However, in assessing

Interacting and Relating with Others, the ALJ never mentioned the

two serious problems or the two very serious problems that D.F.’s

teacher indicated. An ALJ’s analysis is deficient where he

“failed to explain why he did not credit portions of the record

that were favorable to [claimant], including the teachers’

reports that found [claimant] had serious or obvious problems in

this domain.” Hopgood v. Astrue, 578 F.3d at 700. Therefore,

remand is necessary. 

Although the ALJ need not discuss every piece of evidence in

the record, he may not ignore an entire line of evidence,

especially if that evidence is contrary to the ruling. Robinson

v. Astrue, No. 10 C 5056, 2012 WL 3991625, at *13 (N.D. Ill. Aug.

29, 2012). The Court finds that the ALJ was required to, at the

very least, discuss the evidence regarding D.F.’s special

education, IEP reports, and the portions of the teacher

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questionnaires which show that D.F. has limitations. His failure

to do so here warrants remand for further proceedings.

B. The ALJ Improperly Relied On His Own Improper Medical 

Opinion.

Plaintiff argues that the ALJ improperly substituted his own

opinion for that of a medical expert. Pl. Motion at 13. 

According to Plaintiff, the ALJ should have elicited an updated

medical opinion from a medical expert, especially to address

D.F.’s 2011 IEP. Id. at 13-14. Defendant responds that the ALJ

was not obliged to hear expert medical testimony at the hearing,

because Drs. Travis and Gilliland previously opined on D.F.’s

condition. Df. Response at 13. Defendant asserts that these

opinions are ultimately sufficient. Id.

According to SSR 96-6p, an ALJ must obtain an updated

medical opinion when Plaintiff proffers additional medical

evidence that might change the State agency's determination. 

Drs. Travis and Gilliland reviewed D.F.’s file in March and July

2010, respectively. However, D.F. received his first grade IEP

in January of 2011. He received an IEP report card in April of

2011. These reports post-date any medical review by over half a

year. The 2011 IEP provides for nearly a 50% increase in the

amount of time that D.F. would spend in special education each

week. The April 2011 report card indicates that D.F. was still

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struggling to meet some of his modified goals. See R. 279-280. 

This evidence could modify the ALJ’s opinion as to whether D.F.’s

borderline intellectual functioning was severe enough to reach

the level of disability (although it need not). Therefore,

Plaintiff argues that the 2011 reports should be reviewed by a

medical expert and his or her opinion should be considered by the

ALJ on remand.

In response to Plaintiff’s argument that a medical expert

should have reviewed the 2011 documents, Defendant argues that

the record contains an abundance of evidence showing that D.F.

does not meet or equal the Listings. However, the law requires

that the ALJ “weigh all the evidence and may not ignore evidence

that suggests an opposite conclusion.” Whitney v. Schweiker, 695

F.2d 784, 788 (7th Cir. 1982). The 2011 documents potentially

suggest a conclusion contrary to the ALJ’s determination.

Moreover, the lawyers for an administrative agency may not

defend the agency's decision on grounds different than those

stated, or at least discernible, in the agency’s decision. 

Miljkovic v. Ashcroft, 376 F.3d 754, 757 (7th Cir. 2004) (citing

SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943)). The court must

know what evidence the ALJ actually used in reaching his

decision, not what evidence might corroborate that decision.

Plaintiff argues that in determining that D.F. was not

disabled, the ALJ based his decision at least partly on the fact

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that D.F. was not being treated with “medication or other medical

modality.” R. 18. From this, the ALJ concluded that D.F.’s

impairments are mild and controllable with continued special

education and “other nonaggressive forms of treatment.” Id.

However, an ALJ may “not make his own independent medical

determinations about the claimant.” Rousey v. Heckler, 771 F.2d

1065, 1069 (7th Cir. 1985) (citing Freeman v. Schweiker, 681 F.2d

727, 731 (11th Cir. 1982). Here, the ALJ cited to no authority

for the proposition that D.F.’s impairments are controllable by

means of any medication or medical device, nor does he mentions

which medication or device might assist D.F. Neither Dr. Travis

nor Dr. Gilliland made any reference to medication or medical

modalities. Neither doctor suggested that special education or

“other nonaggressive forms or treatment” will adequately control

D.F.’s impairments. 

In light of the new medical evidence that was not reviewed

by a medical expert, and because the ALJ’s conclusions are based

on his own medical opinion, this case is remanded. On remand, the

ALJ is not to substitute his own judgment for that of a medical

expert – rather, a medical expert is to review D.F.’s 2011 IEP

and April 2011 IEP report card and the ALJ is to consider that

medical opinion in coming to his conclusion.

V. Conclusion

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For the reasons set forth above, the Court grants

Plaintiff’s motion for summary judgment. The ALJ’s determination

is vacated, and this case is remanded to the SSA for further

proceedings consistent with this opinion.

Date: April 23, 2013 E N T E R E D:

-------------------------------

MAGISTRATE JUDGE ARLANDER KEYS

UNITED STATES DISTRICT COURT

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