considered’ or that ‘the allegations are (or are not) credible.’” Jd. SSR.96-7 further requires that the
ALJ “carefully consider the individual’s statements about symptoms with the rest of the relevant
evidence in the case record in reaching a conclusion about the credibility of the individual’s
statements.” Jd. The Seventh Circuit has recently reiterated the importance of the ALJ’s articulation
of the reasons behind her credibility determination. Brindisi v. Barnhart, _ F.3d __, 2003 WL
61308, No. 02 -1365 (7" Cir., January 8, 2003).

An ALJ's credibility determination “is afforded special deference because the ALJ is in the
best position to see and hear the witness and determine credibility.” Shrameck v. Apfel, 226 F.3d
809, 811 (7" Cir. 2000). However, if alter giving the ALI’s opinion a “commonsensical” reading
tather than a “nitpicking” one, there are gaps in the bridge between the evidence and the result, the
ALJ's determination is not to be upheld. Jd. at 811. In this case the ALJ failed to comply with SSR.
96-7p and the requirement to build a bridge between the evidence and her conclusion. Ttis not clear
how the ALJ arrived at her credibility determinations. She made no specific finding at all regarding
Plaintiff's grandmother and an unsupported finding regarding Plaintiff. The ALJ’s unsupported
conclusion is insufficient under the requirements of the regulations, and case law interpreting those

requirements.

CONCLUSION

The ALJ erred as a matter of law in failing to consider whether Plaintiff met the listing
requirements for asthma. The ALJ’s analysis of whether Plaintiff's impairment is the functional
equivalent of a listed impairment failed to consider the reports of the DDS physicians as required
by SSR 96-6p and 20 C.F.R. § 416.927(f)(2)G@). On remand, the ALJ shall determine whether
Plaintiff's impairment is the functional equivalent of a listed impairment in light of the final rules

effective January 2, 2001. Finally, the ALJ’s credibility determination was insufficient under SSR

19



would fare if the final rules applied. Thc Commissioncr’s brief suggests thai this approach is
supported by the SSA’s statement in issuing the final rules:

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. 54747 at 54751, quoted in Def.’s Mem. Supp. Mot. Summ. J. at 6-7.

However, that argument was rejected in a decision by Magistrate Judge Levin issued on June
5, 2002, more than two months before the Commissioner filed her memorandum in this case on
August 27, 2002. Abrams v. Barnhart, No. 01 C 8096, 2002 WL 1204954, *3-4 (N. D. Ill. June 5,
2002)(Levin, M.J.). The timeline in the Abrams case was almost identical to the timeline here. The
ALJ’s decision in Abrams was issued in July, 1999; the Appeals Council’s decision was issued in
August 2001. fd. at *3. In the Abrams case, as here, the Commissioner argued that the final rules
do not significantly change the standards for childhood disability. /d. at *5. That argument was also
rejected by Judge Levin, who concluded that the changes in the final rules (from the five areas to the
six domains in the step three analysis) were significant and rclevant to the issues of that case in
considering whether the claimant’s condition is functionally equivalent to the listings. Jd, Judge
Levin concluded, in remanding, that the court was not in a position to determine the impact of the

evidence in light of the final rules. Jd.

Counsel for the Commissioner fail to discuss the Abrams case in any way.” Counsel for

1 It is troubling that the attorneys for the Commissioner, who knew, or in the exercise of
professional responsibility should have known, that a position taken by the Commissioner on a
maiter of law had been rejected by a court of this District, failed to cite or cven refer to the Abrams
decision. See N.D.III. Loc. R. 83.53(3) (“In appearing in a professional capacity before a tribunal,
a lawyer shall not: . . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction
known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing

13



Azmacort inhaler," an Intal inhaler’ and a Vanceril inhaler.* (R. 108-110.) He was also prescribed
Albuterol solution, Singulair tablets’, Prednisolone syrup* and Cromolyn solution. (/d.) Plaintiff's
pharmacy records indicate six prescriptions in 1998 and 1999 for the corticosteroids Prednisolone
and Prelone, (/d.) Plaintiff's grandmother testified that these medications were prescribed for five-
day courses of treatment. (R. 215.) She also testified that she had treated Plaintifftwice in 1998 and
1999 with five day courses of Prednisolone on her own initiative, relying on an older prescription
and leflover medication. (R. 216.) She testified that she undertook this treatment as she could not
take more time off work and had learned to anticipate the doctor’s treatment. (/d.) In addition, Dr.
Krakora-Looby indicated that on one occasion Plaintiffreceived oral corticosteroids in her office as
a form of emergency therapy, and her records also reflect two five-day courses of Prelone, (R, 168,
181, 183.)

Plaintiff's grandmother testified that she treats Plaintiff with a nebulizer’ four times a day

and gets up every night to (real him, (R. 212.) She observed that his treatment makes him “antsy”

+ Azmacort is a corticosteroid used for the prophylactic treatment of asthma, /d, at 728. A
corticosteroid is a steroid produced by the adrenal cortex, Stedman 'y at 416.

+ Intal contains cromolyn sodium and is used to prevent cxercise induccd asthma. Ken
Flieger, Controlling Asthma, Vol. 30 No. 90, FDA Consumer Magazine (November 1996) (reprinted.
with updates June 2000), <www. fda.gov/fdac/features/996-asth.htm|>,

© Vanceril is an antiinflamilory corticosteroid indicated for the maintenance treatment of
asthma. PDR at 3165.

7 Singulair is indicated for the chronic treatment of asthma. Jd. at 2183.

5 Prelone is a Prednisolone syrup which contains an adrenocortical steroid used for control
of severe or incapacitating allergic conditions. /d. at 2273-2274.

° Anebulizer is a device used to reduce liquid medication to fine particles for delivery deep
into the respiratory tract. Stedman's at 1184.



96-7p. Plaintiff's motion for summary judgment [dkt#13]1s GRANTED. Defendant’s motion for
summary judgment [dkt# 17] is DENTED and the case is remanded to the Commissioner for further

proceedings consistent with this opinion.

IT IS SO ORDERED.

GERALDINE SOAT BROWN
United States Magistrate Judge

DATED: January 29, 2003

20



functioning: cognitive/communicative functioning, motor functioning, personal functioning, social
functioning, and concentration, persistence and pace. 20 C.F.R. § 416.926a(c)(5)(iv) (effective until
Sept. 11, 2000). Under the final rules, children’s impairments are evaluated according to six
domains. 20 C.F.R. § 416.926a(b) (2001). Under the final rules as well as the interim rules, a
child’s impairment will be considered the functional equivalent of a listed impairment if the child
has two “marked” limitations in one area (or domain) or onc “extreme” limitation in onc arca (or
domain). The ALJ found that Plaintiff had no marked limitations in any area, (R. 21-22.) Plaintiff
argues that he suffers from “marked limitations” as defined by § 416.926 in the areas of motor skills,
social functioning and concentration, persistence and pace. Plaintiff argues that the ALJ’s decision
that he did not have a functional impairment cqual in severity to a listed impairment was
unsupported by substantial evidence.

As a preliminary matter, Plaintiff argues that in making her finding that Plaintiff had no
marked limitations, the ALI failed to consider the reports of the DDS physicians as required by SSR
96-6p and 20 C.F.R. § 416.927(f)(2). (PI.’s Br. at 10.) Both Dr. Ference and Dr. Pardo found that
Plaintiffsuftered from “marked” motor skills limitations. (R. 165, 173.) The ALJ does not mention

those reports in her opinion, finding that Plaintiff did not have marked limitations in any area,
including motor skills. (R. 19.) SSR 96-6p states that “[a]dministrative law judges and the Appeals
Council may not ignore these opinions [by DDS physicians] and must explain the weight given to
these opinions in their decisions.” The ALJ is required to comply with the rulings of the SSA. 20
C-F.R. § 402.35(b). Moreover, the Code of Federal Regulations states that ALJ's “must consider
findings of State agency medical and psychological consultants or other program physicians . . . .”

20 C.F.R. § 416.927(£)(2)(i). In this case the ALJ failed to comply with the regulations.

The Commissioner’s response inexplicably fails to discuss SSR .96-Gp or 20 C.F.R. § 416.927

17



pulmonary insufficiency. Section 103.03 is the listing for asthma.’! Although the ALJ considered

Plaintiff's impairment with regard to Section 103.02(A) and Section 103.03 in gencral, she did not

"' Section 103.03 provides:
103.03 Asthma, With:

A. FEV sub1 equal to or less than the value specified in table I of
103.02A; Or

B. Attacks (as defined in 3.00C), in spite of prescribed treatment and
requiring physician intervention, occurring at least once every 2
months or at least six times a year. Each inpaticnt hospitalization for
longer than 24 hours for control of asthma counts as two attacks, and
an evaluation period of at least 12 consecutive months must be uscd
to determine the frequency of attacks; Or

C. Persistent low-grade wheezing betwecn acute attacks or absence
of cxtended symptom-free periods requiring daytime and nocturnal
use of sympathomimetic bronchodilators with one of the following:

1, Persistent prolonged expiration with radiographic
or other appropriate imaging techniques cvidence of
pulmonary hyperinflation or peribronchial disease; or

2. Short courses of corticosteroids that average more
than 5 days per month for at least 3 months during a
12-month period; Or

D. Growth impairment as described under the criteria in 100.00.

20 CER. Pt. 404, Subpt. P, App. 1 §103.03.



child who wants to be the center of attention. (R. 129.) She reported that she has had some success
with the usc of behavioral modification techniques. (R. 100.) The school social worker reported
similar behavior, (R. 118-119.) His second grade teacher stated that he is growing in his basic skills
areas and takes pride in his work but still requires significant guidance and supervision. (R. 115.)
Plaintiff's second grade report card reflects a satisfactory level of effort in almost all of his classes.
(R. 113-114.) Plaintiff's grandmother has observed that Plaintif(’s teacher is frustrated by his

disruptive behavior. (R. 217.)

STANDARD OF REVIEW

The Social Security Act provides for limited judicial review of a final decision of the
Commissioner (effectively that of the ALJ where, as here, the Appeals Council has denied the
applicant’s request for review). Where the ALJ commits an error of law, “reversal is required
without regard to the volume of the evidence in support of the factual findings.” Jmani v. Heckler,
797 F.2d 508, 510 (7" Cir. 1986). With respect to the ALJ’s conclusions of fact, the reviewing
court’s role is limited. There the role of the district court is only to determine whether the decision
of the ALJ is supported by substantial evidence in the record. Wolfe v. Shalala, 997 F.2d 321, 322
(7 Cir. 1993). In reviewing the Commissioner’s decision, the court may not decide facts anew,
reweigh the evidence, or substitute its own judgment for that of the Commissioner. Herron v.
Shalala, 19 F.3d 329, 333 (7" Cir. 1994); Brown y, Chater, 913 F, Supp. 1210, 1213-14 (N.D. UL.
1996)(Bucklo, J.). Thus, the court does “not substitute [its] own judgment for that of the ALJ.”

Perkins y. Chater, 107 F.3d 1290, 1296 (7" Cir, 1997), Rather, the court must affirm a decision if

it is supported by substantial evidence and the ALJ has made no error of law. Herr v. Sullivan, 912



and “touchy.” (R. 217.) She stated that becoming upset, any type of play, changes in the weather,
cigarette smoke and the environment outside of the home can all trigger Plaintiff"s asthma. (R. 213.)
According to his grandmother, Plaintiff is unable to participate in sleepovers, birthday parties and
sports and spends most of his time inside the home. (R. 57.) Shc also testified that he is never free
of symptoms. (R. 213.)

Plaintiff testified that every time he runs for a while he gets a wheeze that is not alleviated
by trcatment. (R. 204.) He also testified that hc sometimes gets wheezes even without exercise and
he often wakes up in the middle of the night because of wheezing or coughing. (R. 207-208.) The
onset of a wheeze does not prevent Plaintiff from continuing to play, (R. 204), and he participates
in physical education classes at school. (R. 114.) However he must use his inhaler beforehand. (R.
182.)

Plaintiff was evaluated in 1998 by two consultive physicians from the Bureau of Disability
Determination Services (“DDS”), Dr. Ference and Dr. Pardo, who completed Childhood Disability
Evaluation Forms. Both physicians found that Plaintiffs asthma was severe, but did not meet or
equal the severity of a listed impairment. (R. 163, 171.) They both also found that Plaintiff had
marked limitation in his motor functioning. (R. 165, 173.) Neither DDS doctor indicated that
Plaintiff cvidenced limitation in his social skills or his concentration, persistence and pace. (/d.)

Plaintiff has difficulties at school. He repeated the first grade, and for some time was
meeting weekly with the school social worker. (R. 99, 116.) In response to a School Activities
Questionnaire, his first grade teacher reported that he occasionally bullies other students, often does

not pay attention to instructions and can be disruptive in class. (R. 127.) She also reported that he

will occasionally craw] or cry when he cannot get his way. (R. 128.) She described him as a needy



(f)(2) in any way. Instead, the Commissioner argues, in footnote, that “the ALJ’s decision not to
adopt [the] opinions [of the state agency physicians] was rcasonable.” (Dcf.’s Mem. at 10 n.4.)
However, the ALJ’s decision gives no indication that the ALJ’s even considered those opinions.
That was clearly contrary to the to the regulations which require that the ALJ “explain” the weight
given to the opinions by the DDS physicians. The ALJ’s failure to discuss the DDS physicians’
findings was error as a matter of law.

Because this case must be remanded and upon remand the ALJ will consider the evidence
as it relates to the six domains created by the final rules, it is unnecessary for this decision also to
consider whether ALJ’s decision as to the other four areas of functioning is supported by substantial

evidence.

dD. CREDIBILITY DETERMINATION,

The ALJ found Plaintiff's statements regarding his symptoms and abilities not credible
without an explanation of that finding. She wrote, “The claimants’s subjective complaints of
disabling symptoms and limitations were considered but are found not entirely creditable for the
reasons discussed in this decision.” (R. 22.) Shc made no finding regarding Plaintiff’s
grandmother’s credibility although Plaintiff's grandmother testified at lengih in the hearing.

SSR 96-7p requires that a credibility finding be supported with specific reasons. SSR 96-7p

states that

[t]he determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subscquent revicwers the weight
the adjudicator gave to the individual’s statements and the reasons for that weight.

SSR 96-7p specifically disapproves of blanket statements. It states that “[i]t is not sufficient for the

adjudicator to make a single, conclusory statement that ‘the individual’s allegations have been

18



F.2d 386, 393 (7" Cir. 1992) (ALJ must articulate his reason for rejecting evidence “within
reasonable limits” in order to allow for meaningful appellate review); Guercio v. Shalala, No. 93 C
323, 1994 WL 66102, at *9 (N.D. Ill. March 3, 1994)(Marovich, J.)(ALJ need not spell out every
step in his reasoning, provided he has given sufficicnt direction that the full course of his decision
may be discerned) (citing Brown v. Bowen, 847 F.2d 342, 346 (7" Cir. 1988)). An ALJ’s opinion
cannot contain conflicting factual determinations. Smith v. Massanari, No. 00-C-7504 2001 WL

936123 at *1-2 (N.D. Ill Aug. 16, 2001)(Shadur, J.).

ALJ’S DECISION

Childhood disability claims are evaluated according to a three-step process. 20 C.F.R. §
416,924. Under this process the ALJ first determines if the claimant engaged in any substantial
gainful activity. 20 C.F.R. § 416.924(b). At step two of the process the ALJ determines if the
claimant suffered from ascvere impairment. A severe impairment is an impairment that causes more
than minimal functional limitations. 20 C.F.R. § 416.924(c). At step three the ALJ determines if
the claimant has an impairment that meets or is medically or functionally cqual in severity to a listed
impairment. 20 C.F.R. § 416.924(d)."°

At step one, the ALJ noted that there was no evidence that the Plaintiffhad ever worked. (R.
17.) At step two, the ALJ found that Plaintiff suffered from a severe impairment. (/d.) At step threc
the ALJ found that Plaintiff's asthma did not meet the requircments of a listed impairment in 20

C.RR. Pt. 404, Subpt. P, App. 1. Ud.) Section 103.02 of that Appendix is the listing for chronic

} Although certain changes were made to the rules between the time of the ALI’s decision
and the present (see Discussion below), the three-step process set out in 20 C.F.R. § 416.924 was not
substantively changed, 65 Fed. Reg. 54547, 54751 (Sept. 11, 2000).

8



Minute Order Fern (06187),

“ Y United States District Court, Northern District of Hlinois
L ame of Assigned Judge: Geraldine Soat Brown Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C9418 DATE 1/29/2003
CASE Mayfield vs. Barnhart
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintilf, defendant, 3rd party plaintiff. and (b) state briefly the nature
al the motion being presented. |

MOTION:

DOCKET ENTRY:

ap) oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

QB) oO Answer brief to motion due. » Reply to answer briefdue

(4) oO Ruling/Hearing on set for at

(5) oO Status hearing[held/continued to] [set for/te-set for] on _ _setfor at __

@ oO Pretrial conference[held/continued to] (set for/re-set for) on _set for a.

(7) im} Trialfset for/re-set for] on __ at.

(8) a [Bench/Jury trial] [Hearing] held/continued to at

(9) Db This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) UO Local Rule 41.1 OFRCP4I(a1) =O FRCP41 (a2).

ao [Other docket entry] Tor the reasons set out in the Memorandum Opinion and Order. the
defendant's motion for summary judgment [17-1] is denied, the plaintiff's motion for summary judgment
[13-1] is granted, and the case is remanded to the Commissioner of Social Security for further proceedings
consistent with the Opinion. Commissioner's counsel Kathryn A. Beverly is hereby ordered to appear in
person before this Court on Friday, February 7, 2003 at 10:30 a.m. Enter Memorandum Opinion and
Order.

dal a [For further detail see order (on reverse side offattached to) the original minute order-]

No notices required, advised in open court Document

Number

No notices required
amber a notices

JAN 3 0 2003

dove mailed nots:

oY | Notices mailed by judge's stat’.

Notified cuunsel by telephone,

Docketing to mail natices

Mail AQ 450 form, Lyunga Pim,

VS

Copy to judge/magistrate judge

0

eourtruom 60:
MW deputy’s
initials

“by

Mw

Wi iDateltime rebeiped in
ceutral Clerk's Ofice si dep



416.926a(c)(5)(iv) (effective until Sept. 11, 2000). The ALJ found that although Plaintiff had
repeated the first grade there was no allegation or evidence of limitation in the area of
cognitive/communicative functioning. (R. 19.) The ALJ also concluded that Plaintifflacked marked
limitation in his motor functioning. (/d.) Tn reaching that conclusion the ALJ did not address the
findings of the two consulting DDS doctors who evaluated Plaintiff, both of whom found “marked”
limitations in Plaintiffs motor functioning. (R. 19, 165, 173.) The ALJ next addressed Plaintiff's
social functioning and, after discussing the testimony of Plaintiff, his grandmother, and reports
written by Plaintiff's teachers, concluded that he had “Icss than marked” limitation in that area. (R.
20-21.) The ALJ found that there had been no allegation of limitations in the area of personal
functioning. (R, 20.) Tn addressing Plaintiff's concentration, persistence and pace, the ALJ found
that the reports completed by Plaintiff's school evidenced some degree of limitation, the evidence
fell short of a finding of marked limitation. (/d.) In reaching this conclusion the ALJ did not discuss
the Childhood Function Report submitted by Plaintiff's grandmother to the SSA. (R. 94-97.)
The ALJ stated that in reaching her conclusions, the ALJ found that “the claimant's
subjective complaints of disabling sympioms and limitations were considered but are found not
entirely credible for reasons discussed in this decision.” (R. 22.) As arcsult ofher findings, the ALJ

held that Plaintiff was not disabled. (R. 22.)

DISCUSSION
Plaintiff alleges that the ALJ erred in three respects. First, Plaintiff argucs that the ALJ’s
erredin determining that Plaintiff's condition failed to meet the requirements for a listed impairment.

Second, Plaintiff argues that the ALJ’s determination of functional equivalence was not supported

11



consider Plaintiffs impairment in light of Scction 103.03(C), which Plaintiff argues is specifically
applicable.

The ALJ next considered whether Plaintiff's conditions were functionally cquivalent to a
listed impairment, Under the regulations in force at the time of the ALI’s decision, a claimant would
be found to have functional limitations equivalent to a listed impairment if any of the following
applicd: (1) the claimant had an extreme limitation of one specific function or a limitation of a
combination of specific functions that are the same as those in a listed impairment; (2) the claimant
had extreme limitations in an area of development or functioning, or had marked limitations in two
such areas; (3) the claimant had episodic impairments that produced the same disabling functional
limitations as those of a listed impairment with similar criteria; and (4) the claimant had treatment
that produced functional limitations the same as the disabling functional limitations of a listed
impairment. 20 C.F.R. § 416.926a(b)(1)-(4) (1999). As discussed below, the interim mules that were
in effect at the time of the ALJ’s decision were changed in the final rules issued on September 11,
2000.

The ALJ found that Plaintiff did not have a functional limitation that is the same as any listed
functional limitation. (R. 17-18.) The ALJ also found that neither Plaintiffs episodes of asthma
not his treatment produced a functional limitation equivalent to a listed functional limitation. (/d.)
Finally, the ALJ found that Plaintiff did not suffer from marked or extreme limitations in any areas
of development or functioning. (R. 20.)

At the time of the ALJ’s decision, children in Plaintiff's age range were evaluated according
to five areas of functioning: cognitive/communicative functioning, motor functioning, social

functioning, personal functioning, and concentration, persistence or pace. 20 CF.R. §

10



F.2d 178, 180 (7" Cir. 1990); Edwards v. Sullivan, 985 F.2d 334, 336-37 (7" Cir. 1993), Substantial
evidence means “such relevant evidence as a reasonable mind might accept as adequate to support
aconclusion.” Luna v. Shalala, 22 F.3d 687, 689 (7" Cir. 1994) (quoting Richardson v. Perales, 402
U.S, 389, 401 (1971)).

When evaluating a disability claim the ALJ must consider all relevant evidence and may not
select and discuss only that evidence thai favors his ultimate conclusion. Herron, 19 F.3d 329, 333.
Where conflicting evidence allows reasonable minds to differ, the responsibility for resolving the
conflict falls on the ALJ, not the court. //err, 912 F.2d 178, 181; see also Stuckey v. Sullivan, 881
F.2d 506, 509 (7" Cir. 1989) (the ALJ has the authority to assess medical evidence and to give
greater weight to that which he finds more credible). Where there is a conflict between medical
opinions, the ALJ may choose between those opinions but may not substitute his own lay opinion
for that of the medical professionals. Davis v. Chater, 952 F. Supp. 561, 566 (N.D. TI]. 1996)(Keys,
MJ). A treating physician’s opinion regarding the nature and severity of a medical condition is
entitled to controlling weight if it is well supported by medical findings and not inconsistent with.
other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2); Clifford v. Apfel, 227 F.3d 863,
870 (7 Cir. 2000).

Although the district court’s role is limited to determining whether the ALJ’s final decision
is supported by substantial evidence and based upon proper legal criteria, this does not mean that the
ALJ is entitled to unlimited judicial deference. In addition to relying on substantial evidence, the
ALJ must articulate his analysis at some minimal level and state his reasons for accepting or

rejecting “entire lines of evidence,” allhough he need not evaluate in writing every piccc of evidence

intherecord. Herron, 19 F.3d at 333. See also Young v. Secretary of Health and Human Servs., 957



in the record. (R. 144.)

In addition to his hospitalizations, Plaintiff has also been seen in hospital emergency rooms
on three additional occasions. in 1995, Plaintiff was twice admitted to the emergency room with
asthma, (R. 136-137, 139.) In 1997, Plaintiff was seen in the emergency room with wheezes. (R.
157.)

Dr. Janice Krakora-Looby has been treating Plaintiff since December, 1996. (R, 168.) In
her response to a Bureau of Disability Determinations questionnaire, Dr. Krakora-Looby
characterized Plaintiff's symptoms as episodic coughing and wheezing accompanied by acute
exacerbations. (R. 168.) She noted that Plaintiffs asthma is aggravated by humidity, exercise and
respiratory infections. (Jd.) She reported that he has responded well to medication and, as to
restrictions on activity, she listed “none.” (R. 169.)

Tn 1996 and part of 1997, Plaintiff was secn by Dr. Gilbert Lanoff who treated Plaintiff with
weekly allergy shots. (R. 91.) According to Plaintiffs grandmother, this treatment was discontinued

when Plaintiff's grandmother took legal custody of Plaintiff and his insurance changed. (R. 221.)

Over the course of 1998 and 1999 Plaintiff was prescribed an Albuterol inhaler,* an

3 Albuterol is a bronchodialator used for the prevention and relief’ of bronchospasms.
Physician's Desk Reference (“PDR”) 3142-3143 (56" ed., Medical Economics Company 2002).

3



Plaintiff also does not refer to the Abrams case, but instead cites Williams v. Apfel, 179 F.3d 1066,
1068 n.3 (7 Cir. 1999) as supporting reviewing of the ALJ’s decision in light of the interim rules.
(PI.’s Brief in Supp. Pl.’s Mot. Summ. J. at 3-4 n.J .) However, Williams is not on point here. The
Williams case considered a decision rendered by an ALJ before the major changes enacted by the
PRWORA significantly narrowed the standard to be used in determining whether a child is disabled.
Td. at 1068 n.3. The court held that, because the plaintiff there had been properly determined by the
ALJ to be not disabled under the broader pre-PRWORA standard, the plaintiff there would
necessarily also be found to be not disabled under the PRWORA’s more restrictive standard. In this
case, the interim rules and the final rules were both issued by SSA to carry out the PRWORA. As
indicated by Judge Levin in the Abrams case, the court is not in a position to determine the impact
of the evidence when considered in light of the format of the final rules. Abrams, 2002 WL
1204954, *5. Furthermore, in Williams, the court determined that the plaintiff was properly denied
benefits under the old standard. Here, as discussed below, the ALI’s decision cannot stand, and must

be remanded in any cvent, not solely because of the change in the rules.

B. FAILURE TO EVALUATE THE EVIDENCE RELATING TO A LISTED IMPAIRMENT.

The ALJ’s entire discussion of whether Plaintiff's condition meets the requircments for a
listed impairment, consists of the following:

Specifically, the claimant’s asthma has not resulted in atlacks occurring, despite

prescribed treatment, as frequently as required by section 103.03, nor does the record
reflect any pulmonary function studies with results equivalent to that required under

counsel”). The failure of Commissioner’s counsel to disclose the Abrams case appears to violate that
Rule.

14



treatment regime. (R. 207-208; 211-213.) Plaintiff's grandmother testified that Plaintiff is never
symptom rec and is treated daily and nightly with sympathomimetic bronchodilators. (R. 212.) The
record also contains evidence regarding Plaintiff's six prescription for corticosteroids in 1998 and
1999, (R. 108-110.) Plamtiffs grandmother testified that he has received five-day courses of oral
corticosteroids. (R. 215.) Plaintiffs medical records further document two short courses of
corticosteroids. (R. 181, 183.) On the other hand, the evaluation forms completed by the DDS
doctors found that Plaintiff did not meet an impairment listing. (R. 163, 171.) However, the ALJ
did not discuss that evidence either. The ALJ must consider all relevant evidence and state his or
her reasons for rejecting “entire lines of evidence.” Herron, 19 F.3d at 333.

Contrary to the position advanced by the government in the oral argument before this court,
the court cannot find that the ALJ has made “implicit” findings. In Steele y. Barnhart, 290, F.3d 936
(7" Cir, 2002), the Seventh Circuit observed that “regardless 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 ALI.” Steele, 290 F.3d at 941. Given the evidence in the record supporting a finding ofa listed
impairment with respect to section 103.03(C), it was reversible error for the ALJ to have lailed to

state expressly her reasons for finding that Plaintiff's condition did not meet that listing.

Cc ERRORIN FINDING THAT PLAINTIFE’S CONDITION WAS NOT THE FUNCTIONAL EQUIVALENT
OF A LISTED IMPAIRMENT.

As discussed above, the ALJ, applying the interim rules, cvaluated whether Plaintif(s

impairment is the functional equivalent of a listed impairment by considering five areas of

16



is GRANTED, and the case is remanded back to the Commissioner for further proceedings.

FACTUAL BACKGROUND

Plaintiff is a child who suffers from asthma and behavioral problems. At the time of the
hearing before the ALJ in February 1999, Plaintiff was nine years old. (R. 201.) He has been
hospitalized for treatment of his asthma, in conjunction with other symptoms, on at least four
occasions. (R. 130-155.) His first documented hospitalization was for six days in 1991, just prior
to his second birthday. (R. 131.) He was brought to the emergency room complaining of coughing
and wheezing, (/d.) He was diagnosed with pncumonia and asthma’ by one doctor, and asthmatic
bronchitis and mild dehydration by another, (R. 131-133.) Plaintiff's wheeze persisted throughout
his stay at the hospital and he was discharged with a “trace” wheeze. (R. 131.) Plaintiffs second
hospitalization was in 1993. (R. 134.) He was brought to the emergency room with wheezing and
shortness of breath. (R. 135.) He stayed overnight and was diagnosed with status asthmaticus. (/d.)
Plaintiff's third hospitalization was in 1995, (R. 142.) He was again brought to the emergency room
with wheezing and severe shortness of breath and was hospitalized for four days. (R. 143.) He was
diagnosed with status asthmaticus with impending respiratory failure and a history of chronic
asthma. (/d.) Plaintiff was treated with intravenous steroids and antibiotics, and discharged in stable
condition. (/d.) Plaintiffs most recent hospitalization documented in the evidence was in 1996
when he was admitted from the emergency room with severe asthma and treated for eight days. (R.

146-148.) Plaintiffs medical records allude to additional hospitalizations but these are not reflected

2

Asthma is an inflammatory disease of the lungs characterized by reversible airway
obstruction. Stedman's Medical Dictionary (“Stedman's”) 158 (27" ed., Lippincott Williams
Wilkins 2000).



aon
one

3 0 2003
UNITED STATES DISTRICT COURT JAN 3 0
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CLYDIE MAYFIELD, on behalf of )
DE SEAN HOLLAND, )
Plaintiff, ) Cause No, 01 C 9418
)
v. ) Magistrate Judge Geraldine Soat Brown
)
JO ANNE BARNHART, )
Defendant, )
)

MEMORANDUM OPINION AND ORDER

Plaintiff DeSean Holland, through his grandmother and guardian Clydie Mayfield, filed a
claim for Social Security disability bencfits in 1998. (R. 53.)' The Commissioner of the Social
Security Administration (“SSA”) denied Plaintiff's application for Disability Benefits. (R. 29.)
Plaintiff requested and received a hearing before an administrative law judge (“ALJ”) who rendered
an unfavorable decision. (R. 16.) After the Appeals Council of the SSA’s Office of Hearings and
Appeals (“Appeals Council”) declined Plaintiff's request forreview (R. 4), Plaintil filed the present
action for judicial review pursuant to 42 U.S.C. § 405(g). [Dkt# 1.] The partics have filed cross-
motions for summary judgment under Fed. R. Civ. P. 56 [dkt## 13, 17], and have consented to the
jurisdiction of a magistrate judge under 28 U.S.C. § 636(¢)(1). [Dkt# 8, 9.] Thus, the decision of
this court constitutes the final ruling on the cross-motions. For the reasons sct forth below,

Defendant’s motion for summary judgment is DENIED, Plaintiffs motion for summary judgment

' As used herein, “Plaintiff” refers to DeSean Holland, rather than his grandmother, “R”
refers to the certified record of proceedings, evidentiary documents, and administrative hearing
transcript prepared by the Social Security Administration’s Office of Hearings and Appeals pursuant

to 42 U.S.C. § 405(g).



by substantial evidence. Finally, Plaintiff argues that the ALJ violated SSA guidelines in making
her credibility determinations. For the reasons sct forth below, this court agrees with the Plaintiff
on all three arguments. In addition, there is a threshold issue of which version of the SSA’s rules

for determining disability in children applies in this case.

A, RULES APPLICABLE TO THIS APPEAL,

In August, 1996, Congress enacted the Personal Responsibility and Work Opportunity
Reconciliation Act (the “PRWORA,” Pub. L. 104-193), which modified certain portions of the
Social Security Act. Among other provisions, the PRWORA set forth a new standard for
determining whether a child is disabled. Hickman v. Apfel, 187 F.3d 683, 685 n.2 (7" Cir. 1999);
Williams v. Apfel, 179 F. 3d 1066, 1069 n.3 (7" Cir, 1999). In 1997, the SSA promulgated
regulations making significant changes in the determination of childhood disability claims, in order
to conform to the statutory standard under the PRWORA. 65 Fed. Reg. 54747 (Sept. 11,2000). The
1997 regulations were interim final rules. Je. In September 2000, the SSA issued final rules. 7d.
The ALJ’s decision was issued on August 26, 1999. (R. 22.) The interim rules were in effect at that
time. The revised final rules became effective January 2, 2001. 65 Fed. Reg. 54747. Thus, the
revised rules had become effective by the time of the Appeals Council’s decision in October, 2001.
(R. 4.) The Appeals Council stated that it applied the revised final rules in making its decision. (Id.)

Notwithstanding the application of the final rules by the Appeals Council, the Commissioner
here suggests that the ALJ’s decision should be reviewed in light of the rules as they existed at the
time of the ALJ’s decision, /.e., the interim rules. (Def.’s Mem. Supp. Mot. Summ. J. at 6-7, 10.3,

11n5,, 12.7.) The Commissioner does not analyze or discuss in any way how the ALJ’s decision

12



the tables in section 103.02(a).
(R. 17.)

It is apparent from this discussion that the ALJ improperly read the “frequency of attacks”
requirement in section 103.03(B) as a requirement of all subsections. However, that reading is
contrary to the express terms of section 103.03. Section 103.03 is written in the disjunctive, not the
conjunctive. (See text of section 103.03 in note 11 above.) A condition of asthma accompanied by
evidence of the requirements of section 103.03(C) does not also have to meet the frequency of
attacks requirement of 103.03(B). In light of the expressly disjunctive terms of section 103.03, it
was error for the ALJ to fail to consider whcther Plaintiffs condition met the requirements of each
of the subsections for which there was any evidence in the record.

Plaintiff argues that he mects the requirement of section 103.03(C), requiring “[p]ersistent
low grade whcezing between acute attacks or absence of extended symptom-free periods requiring
daytime and nocturnal use of sympathomimetic bronchodilators with one of the following: .. . (2)
short courses of corticosteroids that average more than 5 days per month for at least 3 months during
a 12-month period.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §103.03(C)(2). Plaintiff argucs that given
this evidence it was a reversible error for the ALJ to fail to evaluate his claim in light of it.

The Commissioner cites Henderson v. Apfel, 179 F.3d 507 (7" Cir. 1999), which upheld the
decision of an ALJ although the ALJ failed to refer to every scction of a listing. Tn Henderson,
however, there was uncontested evidence that the plai ntiff did not mect the listing requirements that
had not been explicitly addressed by the ALJ, 7d. at 514. In this case, however, Plaintiff presented
significant evidence that he in fact met the requirements of section 103.03(C). In the hearing before

the ALJ, Plaintiff and Plaintiff's grandmother both testified regarding Plaintiff's symptoms and

15