which demonstrate an average or low average intelligence. (/d. at 371-72.) Blackman
acknowledged that Plaintiff, wno was testing at the fifth grade level for reading and spelling at age
sixteen, was not functioning at his IQ level, but opinet that Plaintiff could score higher on these
tests if he tried. (/d. at 372-73.) Plaintiffs motivatiot ial problems, according to Blackman, are
demonstrated by his approach to homework; he works for ten minutes before giving up. (/d.)
Blackman found that Plaintiff's impairment “ tess than marked in social functioning. (Id.
at 381.) His opinion was based on Plaintiff's behavior at the hearing itself, the IEPs and the

observations of his teacher at Whistlet Elementary School. (/d.). Blackman did acknowledge,

however, that Plaintiff's social functioning might diminish when he gets frustrated. (/d. at 382.)

Finally, Dr. Blackman also found that Plaintiff does not suffer from a marked impairment in
the functional area of concentration, persistence or pace, a conclusion that was also largely based
on Plaintiff's performance at the hearing. (/d. at 384.) According to Blackman, Plaintiff “showed
adequate ability to concentrate and persist and answer [his attorney's] questions this entire
morning.” (/d.) Although Blackman recognized that Plaintiff is quick to give up on difficult tasks,
he did not believe that this means Plaintiff lacks the attention span for school learning. (/d. at 385.)

E. Testimony of Dr. Howard Lee

Dr. Lee, a pediatrician, provided expert testimony regarding Plaintiff's impairments. Lee
testified that he has not seen any evidence indicating that Plaintiff has a learning disability. (/d. at
400.) Instead, Lee explained, “[Plaintiff] does what he wants to do at the time he wants to do it,
according to the report. He doesn't go to school and he doesn’t do his homework." (/d.) Lee

testified that Plaintiff did not meet, equal, or functionally equal any listed impairment. (/d. at 417.)

6 The record is unclear regarding which report Lee was referring to when he made
this statement. (/d. at 400.)

19


him from functioning. (/d.) A doctor Plaintiff consulted about his headaches (not identified in the
record) was unable to diagnosis the problem.” (/d. at 413.) He takes Tylenol for his headaches
and “Deprakote” to control his seizures.”° (/d. at 326.) He testified that his last seizure was a week
before the hearing, and the previous seizure was three months before the hearing. (/d. at 326.)
He denies having problems with asthma. (/d. at 337, 339.) Although he could not recall the exact
date, Plaintiff recalled being shot in both thighs when he lived with his mother. (/d. at 414.)

B. Testimony of Ann Thomas

Thomas provided only limited testimony at the November 1998 hearing, but stated that
Plaintiff suffers from a short attention span and experiences difficulty concentrating. (A-R. at 355.)
Thomas testified that Plaintiff has a problem with authority, he does not like to take orders from
people, and, according to reports from his teachers, does not apply himself at school. (/d. at 358.)

Thomas provided additional testimony at the March 1999 hearing. At this hearing, Plaintiff
explained that Plaintiff had been living with her since 1996, a year after his mother died. (/d. at
402.) According to Thomas, Plaintiff's mother did not take good care of him. (/d.) Thomas
believes that Plaintiffs problems are the result of his mother's drug use during her pregnancy. (/d.)
For the year following his mother’s death in 1995, Plaintiff lived in Michigan and, according to
Thomas, was “running the streets doing whatever, getting into trouble.” (/d. at 403-404.) Thomas
added that the woman Plaintiff stayed with in Michigan was an unfit parent. (/d. at 404.)

At some point in 1995, Plaintiff's older brother brought him back to Chicago.”" (/d.) While

19 Plaintiff was not certain of the doctor's name. (/d.)

20 The court presumes this is a reference to Depakote, the trade name for Valproic
acid, which is used to treat seizures and migraine headaches. See
http://www.safemedication.com/results.

a The Administrative Record does not reflect the date of this move, nor the name of
Plaintiff's older brother.

13


contemplated by the listed impairments.

The ALJ agreed with the findings made by Fischer and Blackman and determined that
Plaintiff was not disabled. (/d. at 27.) The ALJ noted that there are some limitations on Plaintiff's
cognitive functions, but that he is able to do school work. (/d.) He noted, further, that Plaintiff has
demonstrated some impairment with personal functions, in the form of poor judgment, but he does
not have a marked impairment as demonstrated by the fact that Plaintiff is able to groom himself
and function independently. (/d.) The ALJ then addressed Plaintiff's functionality with respect to
concentration, persistence and pace. Specificaily, the ALJ stated: “[Plaintiff] has a problem with
impulsivity; however, according to Dr. Fischer, there is no evidence of attention deficit hyperactivity
disorder (‘ADHD’). Therefore, his concentration, persistence and pace are less than markedly
impaired.” (/d.) Based on these findings, the ALJ found that Plaintiff does not have an impairment
or combination of impairments that meets, equals or functionally equals the listed impairments.
Although the ALJ determined that Plaintiff did have a marked limitation in the area of social
functioning, (id. at 27), she concluded that Plaintiff “does not have an impairment or combination
of impairments listed in, or medically or functionally equal to one listed in, Appendix 1 to Subpart
P, Regulations No. 4. Accordingly, the ALJ determined that Plaintiff is not disabled under the
Social Security Act. Subsequently, on June 23, 2001, Plaintiff was informed that the SSA Appeals
Council had denied his request to review the ALJ’s decision and that the ALJ’s decision would
serve as the final decision for the Commissioner of Social Security.

vi. Disability Standard

The court notes that there is a dispute between the parties regarding the proper disability
standard applicable to Plaintiff's claim for SSI benefits. Defendant argues that the court should
apply the disability standard that was in place at the time the ALJ made his decision on June 14,

1999. Plaintiff argues, however, that the court should apply the new childhood disability regulations

23


a review, (/d. at 7-9.) In this same letter, Bean informed Plaintiff that the ALJ's “decision stands
as the final decision of the Commissioner of Social Security in your case.” (/d. at 7.) Plaintiff filed
a timely action in this court seeking judicial review of the SSA’s denial of SSI benefits.
i. Medical Evidence Regarding Plaintiff's Disability®

On May 31, 1994, Plaintiff was administered a “psycho-educational assessment,” consisting
of a variety of tests, to assess his learning abilities. (/d, at 192.) On IQ tests, Plaintiff scored a
verbal IQ of 96, a performance 1Q of 86, and a full scale 1Q of 90, placing him in a below-average
to average ability range. (/d. at 192-93.) The test administrator (whose name is not identified in
the record) concluded that Plaintiff had particular weaknesses in general education, cultural
knowledge, long term memory, short term verbal memory, attention span, ability to construct an
abstract design from its parts, and ability to visualize and construct an object from its parts. (Id.)
The evaluator also noted, without elaboration or any specifics, that Plaintiff was “experiencing
significant coping difficulties." (/d.) The evaluator added that Plaintiff has “Learning Disability
Syndrome” and should attend the learning support program at his school. (/d. at 194.)

On June 20, 1997, Plaintiff underwent a 31-minute internal medicine evaluation given by
Dr. George Bridgeforth.® (/d. at 202-204.) Bridgeforth did not have any of Piaintiff's past medical
records and based his findings solely on his own evaluation.. (Id. at 202.) In his evaluation,
Bridgeforth noted that Plaintiff complained that he experienced difficulty breathing when engaged
in sports activities and sometimes feels as if he is going to choke. (/d.) Plaintiff also complained
of severe headaches, occasionally accompanied by nausea, that do not respond to Tylenol. (/d.)

Bridgeforth diagnosed Plaintiff with mild asthma and ruled out atypical migraine headaches. (/d.)

s The following information was compiled from certain exhibits included in the
Administrative Record.

8 According to the record, Bridgeforth is affiliated with the Lake Shore Medical Clinic
in Chicago, but the record does indicate his area of specialty. (/d. at 202.)

4


F, Testimony of Dr. William G. Fischer
According to Fischer, a psychologist who provided expert testimony at the hearing, the file

compiled on Plaintiff documents that he has a severe mental impairment. {/d. at 419.) He stated

that the impairment lies in the area of social function ig, which, according to Fischer, resulted from

the multiple problems he experienced during te arly years of his upbringing. (/d. at 419-20.)

Fischer did not find any cognitive problems with Pt inti noting that Plaintiff's test results reflect
a person with average intelligence. (/d. at 420) te concluded that Plaintiff does not have a
learning disability, but that Plaintiff has been underachieving, which is connected to his problems
in the area of social functioning. (/d.) He also noted that Plaintiffs tests scores have been
improving and his special class time is limited to approximately 250 minutes a week in a standard
1500 minute week. (/d.)

Fischer referred briefly to the episode in which Plaintiff was admitted to Hartgrove Hospital
after being found wandering the streets with blood on his body. (/d.)} Dr. Fischer noted that Plaintiff
was diagnosed at the hospital by a psychiatrist, Dr. Krawczyk, as having a personality change
secondary to a medical condition, which, according to Fischer, refers to the organic brain invasions
that he had throughout the years by blunt instrument (the court presumes this is a reference to the
multiple head traumas Plaintiff has experienced). (/d.) At the hospital, Plaintiff received a
prescription for Depakote, which had positive effects on this seizure disorder. (/d. at420-21.) He
was also put on Lithium, which reduced his violent tendencies.” (/d. at 421.) Fischer noted,

however, on admission to the hospital, Plaintiff tested positive for drugs and observed that

Plaintiff's social problems can be exacerbated by his substance abuse. (/d.)

29 Fischer did not explain how he knew that Plaintiff was treated with Lithium, nor did
he refer to a specific exhibit when making this statement.

20



apply to Plaintiff's claim. See 65 Fed. Reg. at 54,751.
DISCUSSION

The court is authorized pursuant to 42 Us.C, § 405(g) to review the Commissioner's final
decision. 42 U.S.C. § 405(g); Dixon v. Massanori 270 F.3d 1171, 1176 (7th Cir. 2001). "The
findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Clifford v.
Apfel, 227 F.3d 863, 869 (7th Cir. 2000), Furthermore, this court affords the ALJ's determination
of credibility "special deference” and will only reverse this finding if the plaintiff can show that it is
“patently wrong." Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000).

The court will not, however, uncritically “rubber stamp" the ALJ's decision. Clifford, 227
F.3d at 869. The Seventh Circuit directs a court to review the record critically to ensure that the
ALJ did not "play doctor" by making "independent medical findings." Rohan v. Chater, 98 F.3d 966,
970 (7th Cir.1996). The court must also exercise care in reviewing the ALJ's decision to insure that
the ALJ “articulate[d] some legitimate reason for his decision" and built an “accurate and logical
bridge from the evidence to his conclusion.” Clifford, 227 F.3d at 872. In addition, the Seventh
Circuit stated that conclusions of law are not entitled to deference and an error of law must result
in reversal. Schaefer on behalf of Schaefer v. Heckler, 792 F.2d 81, 84 (7th Cir. 1986). With
these standards in mind the court now addresses the parties’ motions.

Plaintiff argues that the ALJ made three errors that require reversal of his decision denying
Plaintiff SS! benefits. Plaintiff argues, first, that the ALJ did not explain why Plaintiff failed to meet
or medically equal the childhood disability Listing 112.08, which describes personality disorders.
See 20 C.F.R. Part 404, Subpt. P, App. 1, §112.08. Plaintiff argues, next, that the ALJ applied the

incorrect legal standard when he found that Plaintiff did not have a marked limitation in the area

26


behavioral disorder classes at school. (/d.) Despite Plaintiff's problems in the area of social
functioning, Fischer found that Plaintiff did not meet the disability standard necessary to receive
SSI benefits. (/d.)

Vv. The Administrative Law Judge's Decision

On June 14, 1999, after considering all of the evidence and applying the then-applicable
standard for assessing childhood disability, the ALJ found that Plaintiff was not disabled for the
purposes of the Social Security Act. (/d. at 21.) Based on the expert testimony provided regarding
Plaintiff's physical impairments, the ALJ determined that Plaintiff does not have a severe physical
impairment. (/d. at 26.) The ALJ pointed out the evidence demonstrating that Plaintiffs seizure
disorder is “well controlled with medication” and that Plaintiff has not recently experienced a
seizure. (/d.) The ALJ noted, further, that Plaintiff has fully recovered from his various head
injuries and does not continue to suffer asthmatic attacks, (/d.)

The ALJ addressed Plaintiffs mental impairments with more precision. The ALJ
determined, first, that Plaintiff has not taken part in any gainful activity. The ALJ, next, relied on
the testimony of Dr. Blackman and Dr. Fischer in finding that Plaintiff suffered from a severe mental
impairment, and thus met the second step of the test. (/d.)

in addressing the third and final step, the ALJ noted that Dr. Blackman testified that Plaintiff
could function adequately in school and that his lack of motivation factored into Plaintiffs poor
academic performance. (/d.) The ALJ then noted that Dr. Fischer found that Plaintiff had a
marked impairment in social functioning, but that his impairments in cognitive functioning, personal
functioning, and concentration, persistence and pace were all less than marked. (/d.) The ALJ
also noted that Dr. Fischer found that claimant's academic performance was “less than desirable,”
but was not to a level that the SSA recognized as markedly impaired. (/d.) Dr. Fischer and Dr.

Blackman agreed that Plaintiff did not meet, equal or functionally equal the level of severity

22


puzzling; they might be a symptom of a psychiatric problem, but might also be a variance of a
major motor seizure. (/d. at 360) These episodes do not meet the required listing, however,
according to Goodman, because th > isting requires convulsive movements. (/d.) Accordingly,
he opined that Plaintiff's physical img aintents do not rise to the level of a disability for the purposes

|
of the Social Security Act. | r

‘|
D. Testimony of Dr. B mi Blackman
|
rt

Dr. Blackman, a psychiatrist, ip
I
impairments. (/d. at 362.) Blackman testi ed that Plaintiff has a learning disability disorder and

i ed expert testimony conceming Plaintiffs mental

a conduct disorder. (/d.) He went on to state that Plaintiff has IQ scores in the low average range,
but that his achievement in school is below what would be expected of someone with Plaintiff's IQ.
(Id.)

Blackman testified that he had difficulty assessing the severity of Plaintiffs impairments
because the record is grossly inconsistent. (/d.) He noted that in 1997 Plaintiff was described by
a teacher as “a mature young man," but only one year later he was admitted to Hartgrove in May
1998 for acting out and drug use, (/d. at 363.) He noted that these are extreme inconsistencies.
(/d.) Noting further inconsistences in Plaintiff's academic records, Blackman noted that some of
Plaintiff's testing results are within the average range and others describe “a great deal of
concentration problems and attention problems and attitude problems, behavioral problems.” (/d.
at 364.) Nevertheless, based on the evidence he reviewed, Blackman opined that Plaintiff did not
have any marked limitations in any of the functional areas. (/d.) He explained that he arrived at
his opinion because Plaintiff ‘is capable of relating in a reasonable and pleasant manner.” (/d. at
365.) He also noted the good demeanor that Plaintiff presented at the neuropsychological
evaluation conducted by Lee Madden in March 1998. (/d. at 228, 365.) Even though Plaintiff

became fidgety at more challenging tasks during the evaluation, Blackman noted that Plaintiff was

17


Finn recommended that Plaintiff continue with reasonable accommodations in school as a result
Of his learning disabilities and attention deficient disorder." (Id. at 244.) Finn's conclusion that
Plaintiff suffered from ADD was not addressed in the ALu’s decision denying Plaintiff benefits,
instead the ALJ relied on the testimony of Fischer, who stated that there was no evidence that
Plaintiff suffered from attention deficit hyperactivity disorder.

Mt. Academic Records

On March 30, 1997, while Plaintiff was attending eighth grade at Whistler Elementary
School in Chicago, an administrator or teacher completed an Individualized Education Program
form (IEP pertaining to Plaintiff.** (/d. at 197.) The IEP indicated that Plaintiff had taken a “Wide
Range Achievement Test” on March 27, 1997 and had scored at the fifth grade Teading level, the
fourth grade spelling level, the seventh grade math level, and the fifth grade comprehension level.
(Id.)

In May 1997, Plaintiff, then aged 15, was completing the eighth grade at Whistler.
Catherine Woodall, one of his teachers, completed a “School Activities Questionnaire” in which she
indicated that she had known Plaintiff for one school year and that she spent 200 minutes with him
each week. (/d. at 199-201.) According to Woodall, Plaintiff's “ITBS” scores demonstrated that
he was functioning between a seventh and eighth grade level." (/d.) She noted, further, that she
had not observed any problems with Plaintiff's interaction with other students in class or with his

attention span, concentration, or on-task behavior in class; that he was able to work independently;

" Although Finn does not explain what reasonable accommodations should be
continued, the court presumes that Finn was referring to the special education measures taken by
Plaintiff's school, discussed in more detail below. Finn did not provide any specific examples of
reasonable accommodations that were warranted in Plaintiff's case.

8 The court can not decipher the name of the school administrator or teacher that
completed this form.

“ The Administrative Record does not provide the full name of the “ITBS” test, but the
court presumes that it is a standardized test used to evaluate the development of students.

9



instead merely stated his conclusions and cited certain exhibit numbers. (/d. at 596.)
Defendant argues that the court's rationale in Scott does not require Plaintiff's case be
remanded back to the agency. Although Det nia vo
4 Wy

listing, including Listing 112.08, Defendant ai gu
(Blackman and Fischer), who addressed Plaintiff’
i i

notes that in Anderson . Bowen, 868 F.2d 921,:

to remand or reverse the ALJ's denial of benpfits

i

whether the claimant had vascular congestion F
claimant did not suffer from this condition. in Anderson, however, the ALJ failed to address a
condition rather than an entire Listing. In addition, in making this argument the Defendant attempts
to focus the court’s attention on the record and the testimony of the two medical experts, rather
than on the specific rationale of the ALJ. The court notes, however, that in a recent Seventh Circuit
opinion the court instructed reviewing courts to insure that the ALJ has rationally articulated his or
her decision, regardless of whether there is evidence to support that decision. Steele v. Bamhart,
290 F.3d 936, 941 (7th Cir. 2002) (“regardiess whether there is enough evidence in the record to
support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate
the grounds for her decision and confine our review to the reasons supplied by the ALJ.”)

The court recognizes that much of the medical evidence relied on by the ALJ, the expert
testimony in particular, tends to demonstrate that Plaintiff is not entitled to SSI benefits. The court
notes, however, that it was undisputed that Plaintiff suffered from a conduct disorder. (A.R. at 362,
430.) Plaintiff claims that this conduct disorder satisfies Category A of Listing 112.08 because the
disorder resulted in “persistent disturbances of mood or affect" and “intense and unstable
interpersonal relationships and impulsive and exploitive behavior.” The court notes that Plaintiff

may have difficulty proving that he meets Listing 112.08; it might well be a simple task for the ALJ

29


Report,” noting that Plaintiff had been diagnosed with Epilepsy, evidenced by an abnormal
electroencephalogram (EEG) that revealed “[right] temporal parietal slow activity. “ (/d. at 214.) He
noted, further, that Plaintiff took Dilantin to control his deizures and that Plaintiff suffered severe
headaches as a result of the seizures. (/d.) | i | :

|

esumably an ophthalmologist) completed

On September 30, 1997, Dr. John Shermulis \(;
|
an “Ophthalmological Report” in which he noted that injSentember 19985, Plaintiff had been hit with

ie

ine
for the visual field defects in his right eye. (Id. at 217118.

a brick in his right.eye. (/d. at 217.) Plaintiff's left eye, ding to Shermulis, was compensating

t

In November 1997, Dr. Man Mohan Singh, Dr. Edward Faranco, and Bronwyn Rains
completed a “Childhood Disability Evaluation Form” regarding Plaintiff.° (/d. at 220.) Although they
noted that Plaintiff had an established seizure disorder, asthma, and a learning disability, they
concluded that these impairments did not meet, medically equal, or functionally equal the severity
of a listing for the purposes of SSI benefits. (/d.) They did find, however, that Plaintiff had a
marked limitation in the area of concentration, persistence, or pace. (/d. at 222.) They noted that
Plaintiff's impairment was less than marked in the functional areas of: (1) cognitive/communicative;
(2) motor; (3) social; and (4) personal. (/d.) Although this evaluation supports Plaintiffs argument
that he suffers from a marked impairment in the area of concentration, persistence and pace, it was
not discussed by the ALJ in his decision to deny Plaintiff benefits.

On March 10, 1998 and March 17, 1998, Plaintiff underwent a “Neuropsychological
Evaluation” at the University of Chicago. (/d. at 226.) Dr. Helene Yurk, assistant professor of
clinical psychiatry and director of pediatric neuropsychology at the University of Chicago, performed

this evaluation and noted that Plaintiff was friendly, polite, well-groomed, oriented in all spheres,

8 On the form, Rains indicated he specializes in the area of psychology. (/d. at 220.)
Doctors Singh and Faranco did not indicate a specialty on the form, but they are both medical
doctors. (/d.)


On the same day, Plaintiff underwent a psychiatric examination. (id. at 207-209.) The
psychiatrist who examined him, Dr. Rama Embar, noted that Plaintiff was appropriately dressed
and cooperative during the evaluation, that his mood was neither depressed or manic, and that his
affect and esteem were normal. (/d. at 207.) Plaintiff demonstrated no evidence of
preoccupations, obsessions, phobia, or delusions. (/d. at 208.) Plaintiff informed Embar that he
smoked a few cigarettes a day, that he occasionally smokes marijuana, and that he drinks wine
occasionally as well. Embar’s diagnostic notes state: (1) “rule out depressive disorder’; (2) "rule
out ethanol and drug abuse”; and (3) “past history of abuse and neglect.”’ (/d. at 209.) Embar also
stated that Plaintiff suffers from “behavioral problems,” such as being quick to anger and having
problems with law enforcement. (/d.)

In July 1997, Dr. Carl Hermsmeyer and Dr. Virgilio Pilapi completed a “Childhood Disability
Evaluation Form” for Plaintiff, in which they evaluated the evidence regarding Plaintiff's asthma and
learning disorder.® (/d. at 210.) The doctors concluded that Plaintiff's impairments were severe,
but that the impairments did not meet, medically equal, or functionally equal the severity of a listing
for the purposes of disability benefits. (/d. at 210.) They determined that Plaintiff exhibited no
evidence of any limitation in the functional areas of: (1) cognitive/communicative; (2) motor; (3)
personal; (4) concentration, persistence, or pace. (/d. at 211.) They did note that Plaintiff had
some limitation in the social functioning area, but concluded that this limitation was less than
marked. (/d. at 211.) The doctors explained that Plaintiff demonstrated no physical problems,
attended classes regularly, and tested at expected grade levels. (/d. at 213.)

On September 27, 1997, Dr. Sheng Wu, Plaintiff's pediatrician, completed an “Epilepsy

ul The court presumes “ethanol” abuse relates to Plaintiff's use of alcohol.

8 The record does not indicate the doctors’ areas of specialty. (/d. at 210.) Nor is the
court able to determine which doctor made each conclusion on the form. (/d.) For the purposes
of this opinion, the court will presume that both doctors participated in each aspect of the
evaluation.


motivated and cooperative throughout the evaluation. (/d.) According to Blackman, Plaintiff's
behavior at the evaluation, as reported by Madden, demonstrates that he has the capacity to relate
appropriately. (/d.)

Blackman then rated Plaintiff on the functional guides based on his impairments. (id. at
366.) He explained that Plaintiff's impairment is less than marked in his cognitive functioning;
motor functioning; social functioning; personal betlavior, and concentration, persistence and pace.
(/d.) In Dr. Blackman’s view, however, Plaintiff outers from a learning disability. (/d.) Blackman
explained that learning disabilities fall into three groups — reading, mathematics, and expressive
language. (/d.) Dr. Blackman testified that Plaintiff has all three types of learning disabilities, but
that the real problem with his academics is that “he doesn't Teally try.” (/d.) In other words,
Blackman explained that tasks are difficult for Plaintiff, but if he tried harder, he would have better
results. (/d. at 366-67.)

Blackman did acknowledge that Plaintiff's frustration with homework means “that he may
not be able to achieve according to his actual intellectual ability.” (/d. at 367.) He also noted that
his learning disability could affect his self-esteem and the way he gets along with classmates, but
the doctor was unwilling to agree with Plaintiffs attorney that Plaintiff's difficulty interacting with
peers is the resuit of his learning disability.”” (id. at 368.) Blackman also acknowledged that
Plaintiff has a conduct disorder, as evidenced by his defiant attitude, his difficulty with teachers and
other authority figures, and his abuse of alcohol and drugs. (/d. at 368-70.) Dr. Blackman noted
that the neglect and sexual abuse that Plaintiff suffered as a child could contribute to a conduct
disorder. (/d. at 371.)

Blackman concluded that Plaintiff's impairments were less than marked in his cognitive and

communication functioning. (/d.) In making this finding, Blackman relied on Plaintiff's IQ scores,

a Blackman did not describe Plaintiff's learning disability in any further detail.

18



“Discharge Summary” prepared by Hartgrove Hospital, on the night of the incident, Plaintiff “had
been extremely violent,” but he did not remember how he became bloody. (/d.) A blood test
revealed the presence of cannabis in Plaintiff's system. (/d. at 237-38.) He remained a patient at
the hospital until his release on June 1, 1998, at which time, the attending psychiatrist, Dr.
Krawczyk, provided a discharge diagnosis of “personality change due to medical condition.” (id.
at 237.)

While at Hartgrove Hospital, Plaintiff also underwent a neuropsychological evaluation
administered by Dr. Terry Finn, a psychologist. (id. at 241-45.) Finn described Plaintiff's problem-
solving style as “impulsive, distractable, as well as inattentive.” (/d.) He demonstrated “social
maladjustment” in regard to his family, school and community milieu and “antisocial tendencies to
support his drug habit.” (/d. at 242.) Dr. Finn found Plaintiff got along well with his own peer
group, but was defiant with authority figures. (/d.)

Intelligence testing conducted by Finn revealed, as before, that Plaintiff functioned in the
average to low average range. (/d. at 243.) In the area of short term memory and attention span
functioning, however, Plaintiff demonstrated significant attention deficit disorder in both auditory
as well as visual attention processing for new learning. (/d. at 243.) Plaintiff gave up on tasks quite
easily and thus, Finn found, Plaintiff was unable to sustain the necessary attention required for
school learning. (/d.) On the Beery Buktenica Visual Motor Integration Test, Plaintiff demonstrated
profound visual sequential attention span processing lags. (/d. at 244.) In addition, Plaintiff

demonstrated a severe listening attention span deficit on the Speech-Sound Perception Test. (/d.)

*°(...continued)
did not know how he became so bloody.” (/d. at 237.) It is unclear from the record where Plaintiff
was found walking the streets or who found him. The court presumes, however, that the blood on
Plaintiff's body was not his own because there is no evidence in the record of Plaintiff receiving
medical attention, while at the hospital, in connection with any physical injuries.

" The record does not reflect what behavior on Plaintiff's part demonstrated this social
maladjustment, nor did Dr. Finn present any examples of Plaintiff's “antisocial tendencies.”

8


that became effective on January 2, 2001. Plaintiff's legal basis for making this argument hinges
on the fact that Plaintiff's disability claim was still pending before the SSA’s Appeals Council when
the new rules became effective. As aresult, the decision regarding Plaintiff's application was not
final, Plaintiff argues, and the new rules should apply. Defendant, on the other hand, argues that
the Appeals Council refused to review Plaintiff's claim and therefore the final decision was issued
on June 14, 1999, well before the new regulations became effective.

The court notes that the two standards are not drastically different from one another. Both
sides agree that under the Social Security Act:

[a]n individual under the age of 18 shall be considered disabled . . . if that individual

has a medically determinable physical or mental impairment, which results in

marked and severe functional limitations, and which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not

less than 12 months.
42U.S.C. § 1382c(a)(3)(C)(i). Both sides agree, further, that both standards require a three-step
process to determine whether a child has a disability. 20 C.F.R. § 416.924(a). A child must meet
all three steps in order for the SSA to find him or her disabled for the purpose of the Social Security
Act. The first step is whether the child engages in substantial gainful activity. 20 C.F.R. §
416.924(b). If she does, she is not disabled. (/d.) Next, the SSA must determine whether a child's
impairments are severe, meaning that her impairments cause more than minimal functional
limitations. 20 C.F.R. § 416.924(c). Lastly, a child is not disabled unless her impairment or
impairments meet, medically equal, or are functionally equal in severity to an impairment in the
listings. 20 C.F.R. § 416.924(d).

The two standards diverge at the third step of the analysis and with respect to the functional
equivalency standard. Under the new rules, which became effective in January 2001, the SSA

examines a child’s functioning in six areas or domains to determine if the child is functionally

equivalent to a listed impairment. The six areas or domains are new: acquiring and using

24


United States District Court, Northern District of Illinois

i
Semaine | RebgpR Palmer | Sete
CASE NUMBER 01 C 6082 DATE 9/30/2003
CASE James Deal vs. Jo Anne Barnhart
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) 0 Brief in support of motiondue____.
(3) Oo Answer brief to motiondue___. Reply to answer briefdue__-
(4) im} Ruling/Hearingon_____ssetfor__—__at
(5) Qo Status hearing[held/continued to] [set for/re-set for]on__setfor__ at
(6) oO Pretrial conference[held/continued to} [set for/re-set for]on___setfor__i__at__—. |
(7) Oo Trial{set for/re-set for] on at : :
(8) Oo [Bench/Jury trial] [Hearing] held/continued to__—_aat
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) UO Local Rule 41.1 OOFRCP41(a\(1) [ FRCP41(a)(2). i

(| [Other docket entry] Enter Memorandum Opinion and Order. The court grants Plaintiff's motion
for summary judgment (14-1), denies Defendant’s motion for summary judgment (17-1) and remands this
case to the agency for further proceedings.

(il) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

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IV. Hearings Conducted by ALJ

A. Plaintiff's Testimony

On November 16, 1998, the date of the first of two hearings regarding Plaintiff's application
for SSI benefits, Plaintiff was sixteen years old. (/d. at 309.) For the previous two years, Plaintiff
reported, he had been living with his guardian Ann Thomas and his sister Maria Dorsey.” (Id. at
309, 311-12.) He explained that he had moved in with Thomas soon after his mother died of AIDS
in 1995. (/d. at 310.) Prior to living with Thomas, Plaintiff had primarily lived with his mother, but
she frequently moved him from place to place, leaving him with various friends and family members
for extended periods of time. (/d. at 309-11.) Plaintiff testified that he got along with Thomas, but
acknowledged that his own poor behavior caused problems for her. (id. at 312.) Specifically,
Plaintiff testified that he upset Thomas by punching holes in her walls, staying out all night, getting
into an accident in her car, smoking marijuana, and being disruptive at school. (id.)

At the time he testified at the first hearing, Plaintiff was attending ninth grade at Sullivan
High School. (/d. at 313.) He stated that he was not doing well academically at Sullivan and that
he was receiving Ds and Fs. (/d.) As part of his academic curriculum at Sullivan, Plaintiff was
required to attend a “resource class” for 50 minutes each school day, designed to provide him with
increased attention and instruction. (/d. at 313-14.) For the remainder of his school day, Plaintiff
attends mainstream courses. (/d. at 314.)

In addition, Plaintiff explained that he experienced academic problems prior to attending
Sullivan High School. He had been held back once in the sixth grade and again in the ninth grade.
(Id, at 313-14.) In the previous year alone, before starting at Sullivan, Plaintiff had attended two

different high schools, beginning the academic year in September 1997 at Percy Julian High School

v Thomas testified at the first hearing that Plaintiff moved in with her on September 1,
1996. (id. at 346.)

11



that he understood and completed assignments on time; that he was not troubled by changes in
routine; and that he did not exhibit any unusual or bizarre behavior. (/d. at 199.) She also recorded
that Plaintiff got along well with his peers and teachers; he did not miss classes; he was able to
keep up with his peers in sports and games; he did not exhibit any hygiene problems; he did not
exhibit any physical impairment; and she had not observed any worsening in Plaintiff's behavior.
(/d. at 200.) To the contrary, Woodall characterized Plaintiff as “a very mature young man.” (Id.
at 201.)

On May 27, 1998, Fenger High School, the school Plaintiff was attending at the time,
completed an IEP for Plaintiff.’> (/d. at 176-81.) This evaluation was completed while Plaintiff, then
a ninth grader, was hospitalized at Hartgrove from May 13 to June 1, 1998, and was based in part
on a standardized test administered on March 11, 1998. (/d. at 176.) Plaintiff scored at an eighth
grade level for reading, a seventh grade level for math and a sixth grade level for spelling on that
test. (/d, at 176.) At the time the IEP was completed, Plaintiff's grade point average at Fenger
was a 1.2857, and his class rank was 252 out of 595 students."® (/d.) The report noted that
Plaintiff exhibited deficits in visual discrimination and in perception. (/d.) The report also indicated
concerns regarding Plaintiff's mental health, resulting from the multiple moves he experienced after ~
his mother’s death in 1995. (/d.) The report did note, however, that Plaintiff “[g]ets along weil with

his peers.” and that he did not need an extended school year to maintain his then-current level of

information, skills, and behavior. (/d. at 179.)

6 The court is unable to decipher the name of the person that completed this form.

f 8 As remarkable as it might seem, according to the May 1998 IEP, Plaintiffs grade
point average of 1.2857 placed him in the top half of his class.

10


for the ALJ to award SSI benefits under the then-applicable functional equivalence standard. 20
C.F.R. § 416.926a(b)(2) (1999).

Defendant argues that the ALJ relied on all of Fischer's testimony, in which he considered
a variety of factors in concluding that Plaintiff was not markedly impaired in the area of
concentration, persistence and pace, including Plaintiff's performance at school. While Defendant
is correct in stating that Fischer examined a great deal of information in forming his opinion about
Plaintiff, the ALJ appears to have concluded that a finding of ADHD is required for a Plaintiff to be
markedly impaired in this area.

Lastly, the court notes that Plaintiff argues that he is functionally disabled because he has
marked limitations in two domains under the new regulations, which became effective January 2,
2001. As explained above, however, the new regulations were not applicable to Plaintiff's claim
at the time of the ALJ decision. Thus, the court overrules Plaintiff's objection on this basis.

CONCLUSION

For the reasons explained here, the court grants Plaintiff's motion for summary judgment
(14-1), denies Defendant's motion for summary judgment (17-1) and remands this case to the
agency for further proceedings.

ENTER:

Dated: September 30, 2003

United States District Judge

31


to discuss the listing in connection with his denial of benefits. The court, nevertheless, is unwilling
to find that the ALJ's finding is supported by substantial evidence when he did not address the
evidence in light of the relevant listing. As noted, the ALJ is required to “build an ‘accurate and
logical bridge from the evidence to [his] conclusion’ to enable a meaningful review.” Scott, 297
F.3d at 595, quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002). As in Scott, this court
will remand this case back to the agency for further proceedings. As a result the court grants
Plaintiff's summary judgment motion and denies Defendant's motion.

The court notes, moreover, that in finding that Plaintiff did not have a marked limitation in
the area of concentration, persistence, or pace, the ALJ stated: “Claimant has a problem with
impulsivity; however, according to Dr. Fischer, there is no evidence of attention deficit hyperactivity
disorder (“ADHD”). Therefore, his concentration, persistence and pace are less than markedly
impairment [sic].” (A.R. at 27.) The ALJ's conclusion leaves the impression that a child could not
be markedly impaired in this area unless he or she is diagnosed with ADHD, which is not the
standard under the Social Security Act. Instead, an ALJ is instructed to focus on the claimant's
performance at school. According to the reguiations,

the intent of the functional criterion . . . of concentration, persistence, or pace

resulting in failure to complete tasks in a timely manner, is to identify the child who

cannot adequately function in primary school because of a mental impairment.

Although grades and the need for special education placement are relevant factors

which must be considered in reaching a decision . . . they are not conclusive.

20 C.F.R. Part 404, Subpt. P, App.1, § 112.00C.3; See also 20 C.F.R. Part 404, Subpt. P, App.1,
§ 112.00C.4 (regulations explain that functional criteria for children ages twelve to eighteen parallel
those for primary school children). Whether the ALJ correctly determined Plaintiff's limitation in this
area is highly relevant to Plaintiff's claim. If the ALJ had decided that Plaintiff had a marked

limitation in the area of concentration, persistence, or pace, this finding along with his previous

finding that Plaintiff suffered a marked limitation in social functioning, would have provided a basis

30



and exhibited no evidence of a thought disorder. (/d. at 228.) 1Q testing demonstrated that
Plaintiff was in the average range of intellectual functioning with 1Q scores ranging from below
average to average. (/d.) Plaintiff exhibited more difficulty in the area of written language; his
knowledge of punctuation, capitalization, spelling, and word usage scored at a third grade level
(Plaintiff was sixteen years old at the time). (/d. at 230.) His expressive writing ability scored at
a sixth grade level, leaving his overall expressive writing skills in the borderline impaired range.
(id.) Yurk determined that Plaintiff's overall level of intellectual functioning scored within the
average range and that his profile was consistent with a learning disorder in reading and written
language. (/d. at 233.)

According to Yurk, Plaintiff's attention skills were varied throughout the evaluation. (Id. at
231.) Plaintiff's results on the Continuous Performance Test were consistent for a person with poor
sustained attention and a mildly impulsive response style. (/d.) Yurk noted, further, that Plaintiff
exhibited “significant difficulty with tasks of sustained attention. Furthermore, [Plaintiff's] response
style was uneven and inconsistent during more lengthy tasks.” (/d. at 231.) Yurk concluded that
Plaintiff “demonstrated significant attentional problems, a high level of impulsivity, and poor
organizational skills, which interfered with his optimal performance on the above test measure.”
(Id, at233.) Based on these findings, Yurk observed that Plaintiff would benefit from “a small class
size, a quiet environment, sitting away from distractions (i.e. close friends, high traffic areas), sitting
in the front close to the teacher, brief assignments with concise instructions, and frequent
performance feedback from the teacher.” (/d. at 235.)

On May 13, 1998, Plaintiff was admitted to Hartgrove Hospital after he was discovered

walking outdoors with blood (not his own) on his arms and chest.” (/d. at 237.) According to the

0 The record does not provide much detail regarding this incident. In fact, the hospital
records, which provide the most information about the incident, state only that “[Plaintiff] has been
extremely violent. He was found walking around the street with blood on his arms and chest. He

(continued...)


Based on his findings, Fischer does not believe that Plaintiff's mental impairment or
combination of mental impairments meet or equals any of the listings. (/d.) He found that Plaintiff
has a less than marked impairment in cognitive ability. (/d.) He found that Plaintiff was
markedly limited in his social functioning, but has less than marked impairment in the personal area
of functioning. (/d.) Although Fischer recognized that Plaintiff puts himself in high risk situations,
he also noted that Plaintiff is capable of taking care of himself and completing chores. (/d.) Thus,
his overall adaptative skills are within normal limits. (/d.)

Regarding the functional area of concentration, persistence and pace, Fischer stated that
Plaintiff has demonstrated problems because he has been under-achieving. (/d. at422.) Fischer
believed that most of his problems were in the area of persistence. (/d.) He noted that Plaintiff's
results on timed !Q tests demonstrate that he is able to concentrate and that pace is not a problem.
(Id.) Fischer testified that Plaintiff's persistence is

variable and that relates to his lack of application of his abilities to what he wants

to learn. It relates to his impulsiveness, a history of that related to his emotional

problems. But there has been no diagnosis of attention deficit disorder or attention

deficit hyperactivity disorder. He’s not been described anywhere in the file that | can

find of having severe problems in this area.

(Id. at 422-23.) He added that Plaintiff's attention span is in the low-average range. (/d. at 429.)
Fischer explained that if Plaintiff were suffering from marked impairments that resulted in
distractability and inattention, he would likely have been diagnosed with ADHD or ADD; instead he
has been diagnosed as no worse than low-average in terms of attention and concentration. (id.
at 429.) Fischer opined that Plaintiff's impairment is less than marked in the functional area of
concentration, persistence and pace. (/d. at 423.)

Overall, Fischer stated, Plaintiff has a problem primarily with social functioning, potentially
as a result of a combination of his oppositional defiant disorder, conduct disorder, and behavior

disorder. (/d. at 430.) He noted, however, that Plaintiff has not been placed in emotional or

21


of concentration, persistence and pace because he was not diagnosed with an attention deficit
disorder. Lastly, Plaintiff argues that the ALJ did not sufficiently explain why Plaintiff failed to
|

functionally equal the childhood disability listings. Not surprisingly, Defendant contends that the
ALJ's decision was supported by substantial evidence and that this court must therefore affirm the
decision denying Plaintiff benefits. The court addresses pain arguments in turn.

First, Plaintiff argues that the ALJ erred by not providing any reasoning for his conclusion
that Plaintiff did not meet or medically equal Listing 112.08, the listing for personality disorders.

Le plein ,
See 20 C.F.R. Part 404, Subpt. P, App. 1, § 112.08. In fact, ‘laintiff notes that the ALJ did not
if

even make reference to Listing 112.08 in his decision denying benefits, but instead generally stated
“[t]he claimant does not have an impairment or combination of impairments listed in, or medically
or functionally equal to one listed in, Appendix 1 to Subpart P, Regulations No.4.” (A.R. at 27.)

The court notes that Listing 112.08, like many of the listed impairments, provides a list of
factors that a claimant must prove to establish that he or she is disabled for the purposes of SSI
benefits. See 20 C.F.R. Part 404, Subpt. P, App. 1, § 112.08. Specifically, Listing 112.08 is
divided into two categories: A and B. For the claimant to meet the listing the claimant must meet
one of the requirements in category A and two of the requirements in category B. /d. Under
Listing 112.08, claimant must demonstrate:

A. Deeply ingrained, maladaptive patterns of behavior, associated with one of the following:

41. Seclusiveness or autistic thinking; or

2. Pathologically inappropriate suspiciousness or hostility; or

3. Oddities of thought, perception, speech, and behavior; or

4, Persistent disturbances of mood or affect; or

5. Pathological dependence, passivity, or aggressiveness; or

6. Intense and unstable interpersonal relationships and impulsive and exploitative behavior;

or

7. Pathological perfectionism and inflexibility;

AND

B. For Children (age 3 to attainment of age 18), resulting in at least two the following:

a, Marked impairment in age-appropriate cognitive/communicative function . . .

b. Marked impairment in age appropriate social functioning . . .
c. Marked impairment in age-appropriate personal functioning . . .

27


is no evidence of an impairment which would prevent him from functioning.” (/d. at 31.)
Subsequently, on August 15, 1997, Thomas appealed the decision on behalf of Plaintiff. (/d. at 34.)
Ina second letter, dated December 5, 1997, Habersham notified Thomas that his claim was denied
on reconsideration. (/d. at 37.) Habersham’s letter acknowledged that Plaintiff had a history of a
learning disability, seizures, headaches, back pain, blackouts, fainting, and nose bleeding, but she
observed that these conditions were treatable and that Plaintiff therefore did not meet the definition
of disability under the Social Security Act. (/d.)

On January 13, 1998, Plaintiff requested a hearing before an administrative law judge (ALJ)
regarding his claim for SSI disability benefits. (/d. at 41.) Administrative Law Judge Robert Asbile
conducted the first of two hearings on November 16, 1998. (/d, at 302-88). At the hearing, Plaintiff
was represented by counsel and the ALJ heard from Plaintiff, Thomas, and two medical experts:
Dr. Harold Goodman and Dr. Benjamin Blackman.* (id, at 304-88.) Numerous exhibits regarding
Plaintiff's alleged disability were also supplied to the ALJ. A supplemental hearing was held on
March 3, 1999, with Plaintiff and Thomas present, and the ALJ heard from two additional experts:
Dr. Howard Lee and Dr. William Fischer.’ (/d. at 390-437.)

On June 14, 1999, after considering all the evidence, the ALJ issued his ruling, finding that
Plaintiff was not disabled and therefore not entitled to SSI children’s disability benefits. (/d. at 19-
28.) In a June 23, 2001 letter to Plaintiff, William Bean, on behalf of the SSA Appeals Council,

denied Plaintiff's request for review, stating that there was no basis in the SSA regulations to grant

3 Both medical experts at this hearing were called by the ALJ to serve as medical
advisors regarding Plaintiff's claim, but they did not treat Plaintiff. (/d. at 60, 63, 305.) Although
the doctors did not state their specialty, according to their resumes, Blackman has a background
in child psychiatry and Goodman has experience in the area of pediatrics. (/d. at 61-62, 64-65.)

‘ At this second hearing, both medical experts were once again called by the ALJ to
serve as medical advisors regarding Plaintiff's claim. (id. at 72, 77.) According to the record,
neither doctor had treated Plaintiff. Dr. Fischer's education and experience is in the area of
psychology and Dr. Lee has a background in pediatrics. (/d. at 74-76, 80-83.)

3


Plaintiff was living in Chicago, Plaintiff's grandmother attempted to place him in DCFS custody, but
Plaintiffs older brother interceded and placed Plaintiff in the care of a family friend named Gastin.
(id.) After learning that Gastin sexually abused Plaintiff, his grandmother contacted Thomas, who
agreed to take Plaintiff, then aged fourteen, into her home. Plaintiff attended Whistler Elementary
School and was placed in a special education program there because school records showed he
had been enrolled in a special education program in Michigan to address a learning disability. (Id.
at 405.)

According to Thomas, Plaintiff had a great deal of trouble with reading, writing, spelling,
math, and social studies. (/d, at 405-406.) She testified that nothing in school holds Plaintiff's
attention and that his interests are limited to watching television, listening to music, and singing.
(id. at 406.)

Since graduating from Whistler, Thomas testified, Plaintiff attended four different high
schools. (/d.) He started at Percy High School, which he attended for a few months, but was
forced to leave because he was involved in gang activity and had poor grades. (id. at 407.)
Plaintiff was also concerned that he was going to get beat up at Percy. (/d.) While he attended
Percy he was receiving special education courses. After leaving Percy, Plaintiff attended Fenger
High School, until March or May of 1998, (/d.) Plaintiff stopped attending Fenger, according to
Thomas, because he was getting into trouble at school and because he ran away from home. (/d.)

Plaintiff was away from home for an undetermined period of time. When he returned, he
was found — the record does not explain precisely where, or by whom — walking outdoors with blood
on his body. (/d. at 408.) Thomas testified that after consulting with Dr. Madden, Plaintiff's

counselor from the University of Chicago, Thomas had Plaintiff admitted to Hartgrove Hospital in

14


seizures. (/d. at 353.) In addition, Thomas testified that there are episodes in which Plaintiff stares
into space and does not respond when called.”° (/d. at 353-54.)
Cc. Testimony of Dr. Harp id Goodman

Dr. Harold Goodman, a a iia offered his expert opinion regarding Plaintiff's physical
i
impairments and his vie regarc ing the severity of Plaintiff's condition. (/d. at 359.) He limited his

opinions to Plaintiff's pt ysical ai mens because Dr. Blackman was also present at the
November 1998 hearing: rs offer an sate opinion regarding Plaintiff's mental impairments. (/d.) in Dr.
Goodman's opinion, even ‘when all Hindle physical impairments are considered together, the
impact on his motor functioning is still less than marked. (/d. at 361.)

Goodman testified that there was some evidence in Plaintiff's medical records that he
suffered from a “very mild wheeze,” but Goodman determined that the asthma did not cause him
“great difficulty” and does not approach the severity of a listed impairment under the Social Security
Act. (/d. at 359.) Regarding Plaintiff's seizures, Goodman testified that because Plaintiff has fewer
than one seizure per month, he does not meet the test set forth in the listing, 20 C.F.R Part 404,
Subpt. P. App. 1 § 11.02, which requires a showing that the individual suffers more than one major
motor seizure per month, despite at least three months of prescribed treatment. (/d. at 360.) In
addition, the nocturnal seizures Plaintiff experiences do not interfere with activity the next day, as
required by the applicable listing.”* (/d. at 361.) Goodman added that the seizures do not interfere
with communication and that he had discovered no evidence of significant adverse affects from any

medication. (/d. at 361.) Dr. Goodman acknowledged that the episodes of vacant staring are

25 Thomas did not describe the frequency of these episodes.
26 Although Goodman testified regarding the severity of Plaintiff's nocturnal seizures

here, the court has not discovered a medical record discussing these nocturnal seizures, nor did
Plaintiff complain about this condition during his testimony.

16


BACKGROUND'

Plaintiff James Deal resides in Chicago, Illinois, with his ‘egal guardian Ann Thomas.
(Administrative Record, (hereinafter, “A.R.”), at 88-90.) He has filed this action to contest the
Defendant's final decision denying his application for SSI childhood Disability Benefits. According
to Plaintiff, he has been diagnosed with a leaning disability, oppositional defiant disorder, and a
conduct disorder. (id. at 393.) Plaintiff argues that these impairments have resulted in marked
limitations in several functional areas, including: cognition and communication functioning, social
functioning, as well as his concentration, persistence, and pace. (/d. at 393.) Defendant Jo Anne
Barnhart is the Commissioner of the Social Security Administration, the agency responsible for
reviewing Plaintiff's application for benefits and for making the final determination regarding his
claim. The Commissioner's final decision denying Plaintiff's application for SSI benefits issued on
June 23, 2001. Plaintiff filed his timely appeal on August 8, 2001.?

1. Procedural History

On April 11, 1997, Ann Thomas, Plaintiff's guardian, filed an application for SS! benefits on
behalf of Plaintiff, who was fifteen years old at the time, claiming that he was disabled since birth
by a learning disorder, seizures, asthma, and blackouts. (/d. 88-90, 94.) Plaintiff later amended
his application, however, to reflect a disability onset date that coincided with the date Plaintiff's
application was filed. (/d. at 399.) This application was denied by the SSA initially and upon
reconsideration. (/d. at 29-40.) First, in an August 4, 1997 letter from Myrtle Habersham, Regional

Commissioner of the SSA, to Thomas, the SSA denied Plaintiff's disability claim because “there

‘ The court notes that the parties do not dispute the facts relevant to this opinion.
Instead, the parties dispute whether the evidence supported the ALJ's decision and whether the
proper legal standard was applied. The court has compiled the facts for this section directly from
the Administrative Record provided by the Defendant.

2 This court has proper jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3).



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 C.F.R. §
416.926a(b) & (g)-(I). The old functional areas, applicable to the ALJ's decision, were: motor
functioning; personal; cognitive/communicative; concentration, persistence and pace; and social
functioning. (A.R. at 27.) Although the domains are different, both the old and new regulations
required a showing of a marked. limitations in two relevant areas for a claimant to be found
functionally equivalent to a listing. See 20 C.F.R. § 416.926a(b)(2) (1999); 20 C.F.R. §
416.926a(d) (2001).

Both sides recognize that regulations dictate which standard should apply here, though they
differ as to the application of the relevant provision, which explains:

When the final rules become effective, we will apply them to new applications filed

on or after the effective date of the rules. We will also apply them to the entire

period at issue for claims that are pending at any stage of our administrative review

process, including claims that are pending administrative review after remand from

a Federal court. With respect to claims in which we have made a final decision, and

that are pending judicial review in Federal court, we expect that the court's review

of the Commissioner's final decision would be made in accordance with the rules

in effect at the time of the final decision.
65 Fed. Reg. at 54,751. The critical question to address here is: when was the SSA final decision
issued? The Seventh Circuit has held that when the Appeals Council denies a request for review,
the ALJ’s decision will constitute the final decision in the case. Scott v. Barnhart, 297 F.3d 589,593
n.4 (7th Cir. 2002) (“because the SSA's Appeals Council denied plaintiff's] request for review, the
ALJ’s findings constitute the final decision of the Commissioner in this case”); see also 20 C.F.R.
§ 416.1481. Because the Appeals Council denied review in this case, the court will apply the
disability standard in place at the time of the ALJ's decision.

As the court will explain below, the court finds that even after applying the old standard to

Plaintiff's claim, the matter must be remanded back to the SSA for further review. Notably,

according to the SSA's regulation, once the matter is remanded the new disability standard will

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

Commissioner of Social Security
Administration,

EASTERN DIVISION
JAMES DEAL, ) porneres
)
Plaintiff, ) opp 30 es
)
v. ) No. 01 ¢ 6082
)
JO ANNE BARNHART, ) Judge Rebecca R. Pallmeyer
)
)
)
)

Defendant.
MEMORANDUM OPINION AND ORDER

On August 8, 2001, Plaintiff James Deal brought this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3), against Defendant Jo Anne B. Barnhart, Commissioner of the Social Security
Administration (SSA), challenging the Administrative Law Judge’s June 14, 1999 decision denying
his claim for Supplemental Security Income (SSI) childhood disability benefits. Plaintiff asserts that
the decision of the Administrative Law Judge (ALJ), affirmed by the Commissioner, lacked
evidentiary support and employed the wrong legal standard for determining childhood disability.
Plaintiff claims he has medically determinable impairments, including a learning disability and
oppositional defiant disorder, which limit his abitity to function in several areas: cognition and
communication; personal functioning; social functioning; and concentration, persistence and Pace.
Plaintiff asserts that his limitations fram his impairments are “marked and severe,” rendering him

disabled as defined in 42 U.S.C. § 1382c(a)(3)(C)(i).
The parties have filed cross motions for summary judgment. For the reasons stated in this
opinion, Defendant's motion is denied, Plaintiff's motion is granted, and the court remands this

matter to the SSA for further proceedings.

2\



d. Marked difficulties in maintaining concentration, persistence, or pace.

Id.; See 20 C.F.R. Part 404, Subpt. P, App. 1, § 112.02.B.2. Plaintiff argues that the ALJ's failure
to specifically address the 112.08 listing requires reversal. Although Defendant acknowledges that
Plaintiff raised Listing 112.08 before the ALJ and that the ALJ did not specifically mention the listing
in his decision, Defendant argues that reversal or remand is not required because the ALJ relied
on the expert testimony of Dr. Blackman and Dr. Fischer.

Plaintiff's argument relies chiefly on Scott v. Barnhart, 297 F.3d 589 (7th Cir. 2002), in which
the claimant was a four-year-old boy allegedly functioning in the mildly retarded range, evidenced,
according to claimant's mother, by his lagging language skills and short attention span. /d. at 590-
91. In Scott, the Seventh Circuit remanded the claimant's case back to the agency because the
ALJ failed to fully address the medical evidence or discuss that evidence in light of a specific listing.
fd, at 596. The court stated that “[wle have repeatedly admonished ALJs to ‘sufficiently articulate
[their] assessment of the evidence to assure us that [they] considered the important evidence and
. .. to enable us to trace the path of [their] reasoning.” /d. at 595, quoting Hickman v. Apfel, 187
F.3d 683, 689 (7th Cir. 1999). The Seventh Circuit added that the ALJ failed to provide a
“meaningful discussion” of conflicting medical opinions pertaining to claimant's condition, and
instead merely stated his conclusions and cited certain exhibit numbers. /d. at 596. In addition,
similar to Plaintiffs case, the ALJ in Scott failed to address a critical listing. The Seventh Circuit
found that:

the ALJ did not discuss or even reference Listing 112.05--the section critical to

[claimant’s] case. Without any further reference to the listings, the opinion merely

states that: The claimant's impairments do not meet or equal in severity any Listed

Impairment found in Appendix 1 to Subpart B of Regulation No. 4 of the Social

Security Act, as amended.

Id, at 595 (internal quotations omitted). The Seventh Circuit added that the ALJ failed to provide

a “meaningful discussion” of conflicting medical opinions pertaining to claimant’s condition, and

28


and finishing it at Fenger High School. (/d. at 315.) According to Plaintiff, he was forced to leave
these schools for a variety of reasons, including fighting and “gang-banging.” (/d. at 315.) Prior
to exputsion from Julian High School, Plaintiff had been suspended twice, once for arguing with
another student and a second time for fighting with a student. (/d. at 316-17.) Plaintiff has also
been arrested twice: once in October 1999 for vandalism and once earlier in Michigan for drug
possession." (/d. at 322-23.)

Plaintiff testified that he has difficulty completing his homework for schoo! because he gets
frustrated within ten minutes and gives up. (/d. at 314.) He does not ask Thomas for help with his
homework because he believes that she is too busy with other things. (/d.) Plaintiff testified that
he is able to read, but that he is easily distracted, and will start reading but almost immediately find
an excuse to stop. (/d. at 336, 358.) Plaintiff testified again at the March 1999 hearing to provide
the ALJ with an update regarding his condition. At this supplemental hearing, Plaintiff explained
that he no longer attended Sullivan High School and instead, attends a GED program at Olive
Harvey College. (/d. at 394.) He left Sullivan because his grades were very poor and he
anticipated being asked to leave. (/d. at 395.)

Plaintiff testified, further, that in the previous year, he had resumed weekly meetings with
a therapist, Lee Madden, at the University of Chicago. (/d. at 395-96.) He had some sessions with
Madden at some earlier point, but had stopped meeting with her because “she made [him] mad all
the time.” (/d. at 396.) Plaintiff explained that he starting meeting with Madden again because he
began hearing voices, not only when he was in trouble of some kind but also when he is sitting
quietly. (/d.)

Plaintiff also complains of severe headaches and stomach pain, which he explained prevent

8 Although the Administrative Record does not reflect the date of this arrest or the
surrounding circumstances, the court presumes that this arrest took place before or soon after his
mother’s death, while Plaintiff was living in Michigan.

12


May 1998.” (/d.) As noted earlier, Plaintiff remained hospitalized for approximately two to three
weeks. (/d.) He was discharged in June 1998 and returned to Thomas’s home, starting school
in the fall at Sullivan High School, on the north side of Chicago, where Thomas sent him to help
keep him out of trouble. (/d. at 409.) Plaintiff did stay out of trouble, according to Thomas, but was
unable to do the school work, was failing a number of classes, and was not getting any special
educational help. (/d.)

He remained at Sullivan from September until December. (/d.) When Thomas realized that
Plaintiff was going to be “kicked out” of Sullivan, she placed him in a GED program at Olive
Harvey. (/d. at 410.) At the time of the March 1998 hearing, Plaintiff was still attending the GED
program. (/d. at 411.) Thomas explained that the GED program does not use grades, so she is
unable to determine how Plaintiff is performing in that program. (Id.)

Thomas explained that Plaintiff suffers from a number of physical impairments. She
testified that Plaintiff has experienced a number of head traumas. (/d.) He was hit in the head with
a brick when he was six or seven years old. (/d. at 411.) At an undetermined age, he injured
himself when he hit his head against the end of a table. (/d.) The most severe head injury resulted
from a car accident in which a ice scraper pierced Piaintiff's skull.* (/d. at 411-12.) Thomas
explained, further, that Plaintiff suffers from seizures. She did not recall the date of his last seizure,

but did remember taking him to a doctor who prescribed medication that helped control the

22 Thomas did not explain why she needed Madden’s advice to take Plaintiff, who
clearly needed medical attention, to the hospital.

28 Thomas did not explain why Plaintiff was going to be “kicked out” of Sullivan High
School.

2a The record does not indicate when this head trauma took place. In addition, the
court notes that the record is also unclear regarding what instrument actually pierced Plaintiff's
skull. Thomas stated that it was an ice scraper, but other evidence in the record indicates it might
have been an ice cream scoop or a piece of metal. (/d. at 21, 237.)

15