D. Evidence of Encephalopathy

Shannon next contends that the ALJ committed error by not discussing the 1998
electroencephalogram in his analysis and by rejecting the results of the electroencephalogram
without explanation. Courts have repeatedly stated that administrative law judges have a duty to
articulate reasons for accepting or rejecting entire lines of evidence. Herron v. Shalala, 19 F.3d
329, 333 (7th Cir. 1994); Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir. 1984). A written
evaluation of every piece of evidence is not required. Carlson v. Shalala, 999 F.2d 180, 181 (7th
Cir. 1993). Yet administrative law judges may not select and discuss only the evidence that
supports their ultimate conclusions. Herron, 19 F.3d at 333.

After reviewing the briefs, the electroencephalogram, and the entire record, we find no
basis for remanding the case to the ALJ to discuss any aspect of the electroencephalogram.
Dr. Philipps interpreted the electroencephalogram as being "[m]ildly abnormal . . . due to the
presence of the mildly diffused slowing of the background rhythm, compatible with
encephalopathy.’ (R. at 219.) Encephalopathy is a broad term defined as "any disorder of the
brain." Stedman's Medical Dictionary 588 (27th ed. 2000). Dr. Philipps's provisional diagnosis
was "developmental delay." (R. at 219.) The text of the ALJ's decision expressly indicates that
this information was relied on by the ALJ to support his conclusion that Shannon was severely
impaired due to developmental delays. (R. at 24.) So, contrary to Shannon's assertion, this is not

a case where evidence was ignored. We note that Dr. Fischer, whose testimony on which the

* During the electrocephalogram, Dr. Philipps did not observe areas of focal slowing or
epileptic discharges. (R. at 219.)

-19-


However, instead of evaluating the child's impairments in terms of five broad areas of
functioning, the final rules require the administrative law judge to evaluate the child's
impairments in terms of six domains: the ability of the child to acquire and use information, to
attend and complete tasks, to interact and relate with others, to move about and manipulate
objects, to care for oneself, and the child's health and physical well-being. Id. § 416.926a(b)(1).
Thus, an extreme limitation in one domain or a marked limitation in two domains directs a
finding of functional equivalence.

The Social Security Administration designed the domains to provide better guidance on
the evaluation of impairments to adjudicators and the public. Compared to the broad areas of
functioning, the domains aim to provide more detailed and clearer examples of typical and
atypical functioning. For instance, the attending and completing tasks domain states that a child
between the ages of six and twelve should be able to sustain her attention well enough to
participate in group sports. 20 C.F.R. § 416.926a(h)(2)(iv). In response to public comment, the
Social Security Administration disjoined certain components of functioning that were considered
together under one of the broad areas of functioning, and it grouped the disjoined components
with other components of functioning. The goal was to provide a more accurate assessment of
the child’s limitations. Determining Disability for a Child Under Age 18, 65 Fed. Reg. at 54,759.
For example, the acquiring and using information domain encompasses the broad area of
functioning called cognition/communication minus aspects of communication dealing with
speech and language used for interacting and relating. These aspects of communication are dealt
with in the interacting and relating with others domain, the successor to the broad area of

functioning called social functioning. Jd. at 54,759.

-13-


focused and attentive. In short, no one disputes that Shannon experiences difficulties in each of
the aforementioned areas. Nonetheless, substantial evidence demonstrates that Shannon is not

markedly limited in any of them.

Vv. Conclusion
For the reasons stated, Shannon's Motion for Summary Judgment and Shannon's Motion
for Remand are denied. The Commissioner's final decision is affirmed.

ENTER ORDER:

Qeeke COL

MARTIN C. ASHMANTM
Dated: April 23, 2002. United States Magistrate Judge

- 23 -


retake Kindergarten, knew her teacher's name, and knew that she lived close to school. (R. at
53-54, 57-58.) However, Shannon stated that she could not count to ten, could not spell her
name, and could not remember her telephone number. (R. at 63.) Further, Shannon testified that
she could not dress herself and that she received help from Ms. Burling to do "all things." (R. at
55.) Ms. Burling commented that she had to constantly watch Shannon because she had a
tendency to wander off. (R. at 56.) She also stated that Shannon often argued with her sister.
(R. at 60.)

Since 1999 Ms. Burling has taken Shannon to Aunt Martha's Youth Service Center for
counseling. (R. at 60.) In 1999, Ms. Burling enrolled Shannon in special education classes. (R.
at 58.) Such services were not immediately available to Shannon upon her move to Aurora in

October 1998. (R. at 58-59.)

B. Medical Evidence

On January 29, 1997, a social worker, psychologist, and speech-language pathologist
examined Shannon's development. The examiners noted that Shannon's attention and
concentration varied during the examination, on occasion they had to make requests several
times. (R. at 174.) Testing on the Stanford Binet Intelligence Scale revealed an I.Q. of
seventy-eight, which placed Shannon within the borderline range. (R. at 174.) A Peabody
Picture Vocabulary Test-Revised indicated that Shannon was within the low average range with a
standard score of eighty-four and a percentile rank of fourteen. (R. at 175.) Shannon's receptive
language skills were within the lowest limits of the low average range with a percentile rank of

nine according to the auditory comprehension section of the Preschool Language Scale-3, and

-4.


ALJ also relied, reviewed the results of the electroencephalogram and Dr. Philipps's
interpretation of the test. (R. at 63.)

Nor is this a case where the ALJ rejected a line of evidence without providing adequate
explanation. Given the mild results of the electroencephalogram, Dr. Philipps's diagnosis of
developmental delay, the ALJ's conclusion that Shannon suffered from developmental delays,
and the ALJ's ultimate conclusion that Shannon suffered from limitations caused by
developmental delays, it can hardly be said that the ALJ rejected the results of the
electroencephalogram or Dr. Philipps's interpretation of it. From what we can tell, the ALJ
accepted this evidence along with the other evidence of developmental delays, all of which, as a
whole, was adequately discussed by him. Shannon has failed to convince us otherwise.
Particularly, Shannon's emphasis on the vague phrase "compatible with encephalopathy," the
significance of which is insufficiently explained, appears misplaced. The diagnosis listed on

Dr. Philipps's report indicated only developmental delay—a single medical impairment not two.

E. Failure to Consider Specific Listings

Shannon faults the ALJ for not articulating his analysis of the case under Section 112.02
or Section 112.11 of the Listing of Impairments. See 20 C.F.R. ch. IIL, pt. 404, subpt. P, app. 1,
§§ 112.02, .11. Although the ALJ stated in general fashion, after he discussed the evidence, that
"the claimant is not subject to any impairment or combination of impairments that meets or
medically equals the requirements of the Listing of Impairments," Shannon claims that this is

insufficient as a matter of law. (Pl.'s Mem. Supp. Mot. Summ. J. at 12 (citing (R. at 25)).)

-20-


evidence, or deciding questions of credibility." Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir.
1997).

Section 112.02 of the Listing of Impairments provides that a child is disabled if she has
an organic mental disorder that causes medically documented problems in at least one of ten
areas and marked problems in at least two of four areas. 20 C.E.R. ch. ILL, pt. 404, subpt. P,
app. 1, § 112.02. Section 112.11 of the Listing of Impairments provides that a child is disabled if
she has attention deficit hyperactivity that causes marked inattention, marked impulsiveness, and
marked hyperactivity, as well as marked problems in at least two of the four areas specified in
Section 112.02(B)(2). 20 C.F.R. ch. I, pt. 404, subpt. P, app. 1, § 112.11.

Not to mention the fact that Shannon has failed to indicate any evidence that
demonstrates the presence of a specific organic factor judged to be etiologically related to her
abnormal mental state, as well as the fact that Shannon has failed to indicate any evidence that
demonstrates the presence of marked inattention, impulsiveness, and hyperactivity, we find that
the ALJ's decision must be affirmed because substantial evidence shows that Shannon is not
markedly limited in age-appropriate cognitive/communicative function, social functioning, or
personal functioning, or markedly limited in maintaining concentration, persistence, or pace. The
ALJ's analysis of each of these criteria is extensive, while Shannon's criticism of the ALJ's
analysis is perfunctory. Briefly, we note that Shannon's most recent 1.Q. score was eighty-nine.
Her speech and language skills showed age appropriate voice and fluency and average receptive
and expressive vocabulary skills. As a whole, the evidence shows that Shannon interacted at age
level and that she acted socially appropriate. In addition, Shannon could adequately care for

herself. At times Shannon was unfocused and inattentive, while at other times Shannon was

-22-


provide[d] a basis for changing the Administrative Law Judge's decision." (R. at 4.) Although
not explicit, we believe that these statements show that the Appeals Council considered
Shannon's additional evidence to be material, contrary to Shannon's position. The Appeals
Council considers additional evidence pursuant to 20 C.F.R. § 416.1470(b) only after it
determines that the evidence is new and material. Perkins, 107 F.3d at 1294; LaPorta v. Apfel,
No. 98 C 5657, 1999 U.S. Dist. LEXIS 12524, at *9 n.1 (N.D. Ill. Aug. 11, 1999); Fugate, 1993
USS. Dist. LEXIS 13683, at *40-41. Ifthe Appeals Council were to find additional evidence to
be immaterial, then it would refuse to even consider the evidence in the first place. Id. Clearly,
this did not happen here as indicated above.

We also reject Shannon's argument that the Appeals Council failed to sufficiently
articulate its basis for denying review. The Seventh Circuit has held that "the Appeals Council
may deny review of an administrative law judge's decision without articulating its reasons."
Damato v. Sullivan, 945 F.2d 982, 988 (7th Cir. 1992); accord Morphew v. Apfel, No.

IP 99-655-C H/G, 2000 WL 682661, at *10 (S.D. Ind. Feb. 15, 2000); Holloway v. Sullivan, No.
92 C 3176, 1992 WL 245615, at *2 (N.D. Ill. Sept. 24, 1992). Thus, even if we were to agree
with Shannon that the Appeals Council did not articulate its basis for denying review, we would

not find that the Appeals Council committed any error.

Cc. Motion for Remand
As an alternative, Shannon asks this Court to remand the case to the ALJ for
consideration of the additional evidence from Aunt Martha's Youth Service Center pursuant to 42

U.S.C. § 405(g). Under 42 U.S.C. § 405(g), a court may remand a case to the administrative law

-17-


Wi. The ALJ's Decision

In light of the above, the ALJ determined that Shannon was not disabled at step three of
the three-step sequential analysis required under the Social Security Act. See 20 C.F.R.
§ 416.924 (1998). First, the ALJ found that Shannon was not engaged in substantial gainful
activity because she had never worked. (R. at 23.) Next, the ALJ determined that Shannon was
severely impaired by a learning disability and asthma because each of the impairments had more
than a minimal impact on Shannon's functioning. (R. at 24.) Third, the ALJ found that
Shannon's learning disability and asthma did not meet, medically equal, or functionally equal an
impairment listed in the Listing of Impairments, and therefore, Shannon was not disabled. (R. at
25-30.)

In determining that the severity of Shannon's impairments did not meet or medically
equal the severity of a listed impairment, the ALJ considered the testimony of Shannon and
Ms. Burling and he relied on the opinions of Drs. Pilapil, Hermsmeyer, Rains, and Fischer as
well as those of the medical and psychological consultants who reviewed the record. (R. at 25.)
Dr. Fischer's testimony, in particular, was deemed to be fully credible and persuasive. (R. at 25.)
In determining that Shannon's impairments did not functionally equal an impairment listed in the
Listing of Impairments, the ALJ considered the above-referenced evidence in light of 20 C.F.R.
§ 416.926a (1998). The ALJ held that Shannon experienced limitations in the categories of
cognitive and communicative functioning, social development, motor functioning, personal
functioning, and the ability to maintain concentration, persistence, or pace, but to less than a
marked degree. (R. at 26-29.) Shannon's most recent 1.Q. score was eighty-nine. She showed

age appropriate voice and fluency and average receptive and expressive vocabulary skills. (R. at

-9-


Shannon's right-side motor defects were largely corrected. (R. at 200.) During the formal
examination, Shannon was quiet, focused, and appropriately interactive, while before the exam
Shannon's interactions with her sister were "chaotic and cacophonous.” (R. at 200.) In general,
Shannon was emotionally appropriate and exhibited no signs of abnormal behavior. (R. at 201.)

Shannon earned a General Cognitive Index of eighty-two on the McCarthy Scales of
Children's Abilities, which suggested functioning at the dull normal level of intelligence
compared to other children of similar age. (R. at 201.) Her verbal score revealed that she was
below average in her ability to express herself, while her quantitative score revealed that she was
only somewhat below the mean in her facility with numbers and her understanding of
quantitative words. (R. at 201.) Dr. Langgut remarked that Shannon appeared to have lingering
developmental delays, but that she had made progress in various areas. (R. at 201.)

On March 27, 1998, Dr. Debra Fiali conducted a Pediatric Consultative Examination.
Dr. Fiali indicated that Shannon was not enrolled in special education classes at the time, but that
she was on the list for speech therapy. (R. at 203.) According to Ms. Burling, Shannon had
wheezing and coughing symptoms on a nightly basis and during the day after running around
outside. (R. at 203.) Prior to the exam, Shannon and her sister made a great deal of noise, but
during the exam Shannon was cooperative and able to fully participate, occasionally needing a
reminder to stay on task. (R. at 203.) Shannon's lungs were clear with good aeration. (R. at
203.) Her gait was normal. (R. at 204.) Her speech was about seventy-five percent
understandable, and she responded to normal spoken voice. (R. at 204.) Dr. Fiali did not notice
any motor, sensory, or cerebellar abnormalities, but observed that Shannon had decreased ability

isolating her fingers for rapid movements. (R. at 204.) Although Shannon had a history of

-6-


Shannon's expressive language skills equated to a percentile rank of one according to the
Expressive One-Word Picture Vocabulary Test-Revised. (R. at 175.) Testing under the
expressive communication section of the Preschool Language Scale-3 placed Shannon within the
low average range, while testing under the Bankson-Bernthal Quick Screen of Phonology placed
Shannon within the third percentile with a standard score of seventy-one. (R. at 175-76.)
Overall, the examiners concluded that Shannon had borderline to low average abilities. They
warned that Shannon was at risk for learning disabilities. (R. at 176.)

Nine months later, Dr. Abayomi Alkintorin evaluated Shannon. He noted that Shannon
had been diagnosed with developmental delays and asthma. (R. at 193.) At the examination,
Shannon exhibited good air entry in her lungs with no wheezing, full range of motion in her
extremities but with diminished power in her right upper and lower extremities, and the ability to
grasp and manipulate with either hand. (R. at 195-96.) Neurological signs were normal—no
motor, sensory, or cerebellar abnormalities were noted. (R. at 196.) Shannon was alert,
responsive, and capable of following instructions, although she was somewhat easily distracted.
(R. at 196.) Shannon failed the majority of tasks expected for someone of her age in the gross
motor, language, and personal-social sections of a Denver Developmental Screening Test. (R. at
196.) However, she "passed well" the fine motor adaptive section of the test. (R. at 196.)

Dr. Akintorin's impressions were developmental delay, weakness of the right upper and lower
extremities, and bronchial asthma. (R. at 196.)

Dr. Mark Langgut conducted a psychological assessment of Shannon in November 1997.

He noted that Shannon had several neighborhood friends and friends at school with whom she

socialized. (R. at 200.) Shannon's gait appeared unimpaired. (R. at 200.) Reportedly,

-5-


judge for consideration of new and material evidence, provided that the claimant had "good
cause" for failing to submit the evidence to the administrative law judge during the prior
proceeding. Melkonyan y, Sullivan, 501 U.S. 89, 100-01 (1991); Sample v. Shalala, 999 F.2d
1138, 1144 (7th Cir. 1993). New evidence is evidence that was "not in existence or available to
the claimant at the time of the administrative proceeding." Sample, 999 F.2d at 1144 (quoting
Sullivan y. Finkelstein, 496 U.S. 617, 626 (1990)). New evidence is material "if there is a
‘reasonable possibility’ that it would change the outcome" of the final decision. Nelson v. Bowen,
855 F.2d 503, 506 (7th Cir. 1988). Finally, at a minimum, a showing of good cause includes
some explanation as to why the new evidence was not gathered at the proper time. Watts v.
Harris, 614 F.2d 515, 516 (1980).

We agree with the Commissioner that Shannon flunks the newness and good cause parts
of the § 405(g) test.> Shannon's additional evidence is dated from April 1999 through June 1999,
while the ALJ hearing took place in August 1999. Shannon claims that the evidence "may not
have been available, as a practical matter, at the time of the hearing." (Pl.'s Mot. Remand at 2.)
Conjecture of this sort, however, is wholly inadequate to satisfy the burden of showing
"newness" under 42 U.S.C. § 405(g). Accordingly, we find that Shannon's additional evidence is
not new. In terms of good cause, Shannon provides no explanation other than her amorphous
statement that the evidence "may not have been available." This is insufficient for the reason
stated above. See Waite v. Bowen, 819 F.2d 1356, 1361-62 (7th Cir. 1987). Therefore,

Shannon's Motion for Remand is denied.

> We note that evidence is deemed new under 20 C.F.R. § 416.1470(b) if it was not
considered previously during the administrative process. Delvalle v. Apfel, 97 F. Supp. 2d 215,
222 (D. Conn. 1999).

-18-


evidence, his observations at the hearing, and the testimony presented at the hearing, Shannon
did not have an impairment or combination of impairments that met, equaled, or functionally
equaled any of the listings. (R. at 66.)

In terms of personal functioning (i.¢., self-care) and concentration, persistence, or pace,
Dr. Fischer found that Shannon had significant problems, but not ones that were markedly
limiting. (R. at 66-67.) With respect to cognitive and communicative development, Dr. Fischer
found that Shannon's limitations were less than marked. (R. at 67-68.) He explained that
Shannon's I.Q. scores placed her in the low average range but that she was not mentally retarded.
(R. at 67.) The problem was that Shannon was not achieving up to the low average level, and her
current school placement was not helping the situation. (R. at 67.) Dr. Fischer also pointed out
that Shannon's receptive and expressive language skills were average. (R. at 68.)

Dr. Fischer determined that Shannon's motor skill limitations were less than marked. She
still had some right-side weakness and some limitations emanating from her asthma, but she
functioned adequately. (R. at 68.) Lastly, in terms of social functioning, Dr. F. ‘ischer opined that
Shannon's limitations were less than marked. Shannon was a bit immature and dependent, and at
times "a little feisty.” (R. at 68.)

In response to a question asked by Shannon's counsel, Dr. Fischer stated that Shannon's
cognitive development would be markedly limited if her achievement levels were two standard
deviations below her I.Q. scores—he estimated that presently they were only about one. (R. at
72-73.) Upon further questioning, Dr. Fischer iterated that there was no diagnosis of ADHD in

the record, but that it was possible that Shannon had the condition. (R. at 74.)


Copies have been mailed to:

ROBERT C. KIELIAN, Esq.

M. JACQUELINE WALTHER, Esq.

33 West Jackson Boulevard
Suite 201
Chicago, IL 60604

Attorneys for Plaintiff

JONATHAN C. HAILE
Assistant United States Attorney
219 South Dearborn Street

Suite 500

Chicago, IL 60604

Attorney for Defendant


te one Form (06/97)

\q5 ed States District Court, Northern District of Dlinois

Name of Assign ae Martin C. Ashman Sitting Judge if Other
or asi le Judge . than Assigned Judge
CASE NUMBER 01C 3189 DATE 4/23/2002
CASE Shannon Burling vs. Jo Anne B. Barnhart
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
ql) o Filed motion of [ use listing in “Motion” box above.]
(2) oa Brief in support of motion due
(3) o Answer brief to motion due. . Reply to answer brief due.
(4) Qo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on setfor_ at :
(7) a Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (General Rule21 OIFRCP41(a)(1) OO FRCP41(a)(2).

(0) =o [Other docket entry] _ Enter memorandum opinion and order. Plaintiff Shannon Burling’s motion

for summary judgment [17-1] and motion for remand for consideration of new and material evidence

[18-1] are denied. Defendant Jo Anne B. Barnhart’s motion for summary judgment [29-1] is granted.

The Commissioner’s final decision is affirmed.
(1) = [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2

No notices required. number of notices

Notices mailed by judge’s staff.

DPR 24 2002

Notified counsel by telephone. date docketed

Docketing to mail notices.

Mail AO 450 form. dockbting Aepity initials:

Copy to judge/magistrate judge.
4/23/2002

a date mailed notic
courtroom PIL) Py wep eg ate mailed notice
Is deputy’s . s
initials

CU ., Date/time received in

central Clerk’s Office mailing deputy initials



this case should be remanded to the ALJ for consideration of new and material evidence pursuant
to 42 U.S.C. § 405(g); (4) the ALJ erred by disregarding certain evidence; (5) the ALJ erred by
not discussing Section 112.02 or Section 112.11 of the Listing of Impairments; and (6) the ALJ's
findings that Shannon did not meet Section 112.02 or Section 112.11 of the Listing of
Impairments are not supported by substantial evidence. We will address each of these arguments

in turn.

A. New Regulation for Determining Functional Equivalence

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the
"Act") made significant changes to the standards used by the Social Security Administration to
evaluate childhood disability claims. Prior to the Act, the regulations provided that a child under
the age of eighteen was disabled if she suffered from a medically determinable physical or mental
impairment of comparable severity to one that would disable an adult. Hickman v. Apfel, 187
F.3d 683, 687-88 (7th Cir. 1999); Determining Disability for a Child Under Age 18, 65 Fed. Reg.
54,747, 54,747 (Sept. 11, 2000) (codified at 20 C.F.R. pts. 404, 416). The Act removed the
comparable severity requirement and provided that a child was disabled if she had a medically
determinable physical or mental impairment that resulted in marked and severe functional
limitations and that could be expected to last for twelve months. Determining Disability for a
Child Under Age 18, 65 Fed. Reg. at 54,747.

On February 11, 1997, the Social Security Administration published interim final rules
implementing certain provisions of the Act. These rules were in effect at the time the ALJ issued

his decision in this case, and they were employed by the ALJ to render his decision. (R. at 23.)

-1l-


26-27.) She interacted at age level and was socially appropriate. (R. at 28.) Shannon continued
to show improvement in her right-side weakness, and her asthma was controlled with
medication. (R. at 28.) Shannon demonstrated age appropriate self-care. (R. at 29.) Lastly,
Shannon had difficulty sustaining concentration, but at times was focused, quiet, and attentive.
(R. at 29.) Specifically, the ALJ's findings were as follows:

1. The claimant has not engaged in substantial gainful activity at any time
pertinent to this decision.

2. The claimant has a learning disability and bronchial asthma, which
are considered severe.

3. The claimant's impairments (or combination of impairments) do
not meet or medically equal the requirements of a listing in the
Listing of Impairments in Appendix 1, Subpart P, Regulations
No. 4.

4. Subjective complaints are considered credible only to the extent
that they are supported by the evidence of record as summarized in
the text of this decision.

5. The evidence establishes the claimant does not have "marked" or
"extreme" limitations in any areas of functioning.

6. The severity of the claimant's impairments does not functionally
equal the criteria of any of the listed impairments in Appendix 1,
Subpart P, Regulations No. 4.

7. The claimant has not been under a "disability" as defined in the
Social Security Act at any time through the date of this decision.

(R. at 30-31.)
IV. Discussion
Shannon presents six arguments on appeal: (1) the ALJ should reconsider his decision in

light of changes to 20 C.F.R. § 416.926a; (2) the Appeals Council erred in denying review; (3)

-10-


right-side weakness, Dr. Fiali found Shannon to be neurologically intact and without objective
weakness on the right side. (R. at 204.) Shannon took a Denver Developmental Screening Test
that was suspect with multiple age delays and cautions in the personal-social area. She did have
age appropriate gross motor, language, and fine motor adaptive skills. (R. at 204.)

On October 27, 1998, Shannon underwent a electroencephalogram. Dr. Guillerno
Philipps interpreted the test as "[m]Jildly abnormal . . . due to the presence of the mildly diffused
slowing of the background rhythm, compatible with encephalopathy.” (R. at 219.)

In early 1999, the Aurora school district determined that Shannon was eligible for
placement into special education programs at her school. Shannon's voice and fluency were
appropriate for her age, and her receptive and expressive vocabulary skills were in the average
range. (R. at 226.) However, she had a composite score I.Q. of eighty-nine according to the
Stanford Binet Intelligence Scale. (R. at 240.) Around May 1999, Shannon began taking Ritalin
to help Shannon focus and concentrate at one task at a time. (R. at 64, 267.) In May 1999,
Shannon's teacher commented that Shannon had a short attention span and poor concentration

skills. (R. at 249.)

Cc. Medical Expert

Dr. Fischer testified last at the hearing. Based on the evidence, Dr. Fischer concluded
that Shannon had two severe impairments: developmental delays and asthma. (R. at 65.) He
noted that Shannon was prescribed Ritalin, which he presumed was prescribed to treat
hyperactivity, but he remarked that there was no diagnosis of attention deficit hyperactivity

disorder ("ADHD"). (R. at 65-66.) Dr. Fischer also concluded that, based on his review of the

-7-


A similar argument was rejected in Waite v. Bowen, 819 F.2d 1356 (7th Cir. 1987).
There, the ALJ stated that [t]he medical evidence establishes that the claimant has a loss of
motor and sensory function of the left arm, but he does not have an impairment or a combination.
of impairments listed, or medically equal to one listed in Appendix 1, Subpart P, of Social
Security Regulations No. 4." Jd. at 1359. The Seventh Circuit held that the administrative law
judge's statement constituted sufficient articulation to show that the ALJ considered the issue of
medical equivalence. Jd. Likewise, we find that the ALJ's statements in this case constitute
sufficient articulation to show that he considered whether Shannon's impairments met or equaled
Section 112.02 or Section 112.11 of the Listing of Impairments. See id.; Pope v. Shalala, 998
F.2d 473, 481 (7th Cir. 1993); Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988); Gressel
v. Bowen, No. 88 C 2519, 1989 WL 6404, at *3-4 (N.D. Ill. Jan. 26, 1989). But see Clifion v.

Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).

F, Substantial Evidence

Finally, we reach the issue of whether substantial evidence supports the ALJ's findings
that Shannon did not meet Section 112.02 or Section 112.11 of the Listing of Impairments.
Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support
aconclusion." Maggard v. Apfel, 167 F.3d 376, 379 (7th Cir. 1999) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). To determine whether the ALJ's decision is supported by
substantial evidence, "we review the entire record; however, we do not substitute our judgment

for that of the [ALJ] by reconsidering facts, reweighing evidence, resolving conflicts in [the]

-21-


IL. Factual Background

A. Shannon's and Ms. Burling's Testimony

Shannon was born on July 1, 1993, making her six years old at the time of the hearing.
(R. at 80.) She lived with her sister and Ms. Burling—Shannon's grandmother and adoptive
parent. Shannon attended Kindergarten.

Shannon was exposed to cocaine and heroin in utero. (R. at 192-93.) This likely was the
cause of certain developmental delays. For instance, Shannon began walking around nineteen
months of age, speaking her first intelligible words at twenty-five months of age, and
autonomously using the toilet at four years of age. (R. at 200.) Early in life, Shannon had
right-side weakness in her upper and lower extremities. (R. at 202.)

Ms. Burling stated that Shannon experienced much difficulty in Kindergarten because she
“did not understand the work." (R. at 51.) Shannon was unable to count, recite the alphabet,
color, write numbers, and spell words like the other children. (R. at 51-52, 250-51.) Shannon's
teacher commented that Shannon worked below grade level, and, upon completion of the school
year, Shannon's teacher decided that Shannon would need to repeat Kindergarten. (R. at 249,
273.) Despite the circumstances, Shannon stated that she liked school. (R. at 54.) She had
friends there. (R. at 53, 249.)

At the time of the hearing, Ms. Burling believed that Shannon's asthma was "doing pretty
good." (R. at 59.) To treat the asthma, Shannon used a nose spray and an inhaler. (R. at 59.)
Shannon has never been admitted to a hospital because of her asthma. (R. at 59.)

Shannon said that she enjoyed taking dance lessons and playing house and dress-up with

her sister. (R. at 52, 62.) Shannon knew her left from her right, knew that she would have to

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Shannon contends that this change in the regulations from "broad areas" to "domains"
requires a remand considering that the ALJ did not consider, and Dr. Fischer did not address,
Shannon's ability to function in the acquiring and using information domain, the attending and
completing tasks domain, and the caring for oneself domain. (P1.'s Mem. Supp. Mot. Summ. J. at
9.) To assume now that the ALJ or Dr. Fischer would have reached the same conclusions if
either of them had analyzed Shannon's limitations under the relevant domains rather than the
broad areas of functioning, Shannon argues, would amount to improper speculation. (Pl.'s Reply
Mem. at 4-5.)

It cannot be disputed that a change in the law provides a permissible ground for remand.
Nelson y. Sullivan, 966 F.2d 363, 367-68 (8th Cir. 1992); Warncke v. Harris, 619 F.2d 412, 417
(5th Cir. 1980); Hicks v. Califano, 600 F.2d 1048, 1050 (4th Cir. 1979). And, as Shannon
indicates, the courts cannot supply alternative grounds to sustain an administrative law judge's
decision. O'Connor v. Sullivan, 938 F.2d 70, 73 (7th Cir. 1991). Yet it is equally incontestable
that remand is unwarranted where a claimant fails to demonstrate that remand might affect the
outcome of the case. Nelson, 966 F.2d at 367-68; Warncke, 619 F.2d at 417. And the courts
need not entertain undeveloped and perfunctory arguments no matter what the issue. Schoenfeld
y. Apfel, 237 F.3d 788, 793 (7th Cir. 2001) (quoting United States v. Andreas, 150 F.3d 766, 769
(7th Cir. 1998)). In making her argument for remand as a result of the change in law, Shannon
neither cites to any pertinent case law nor indicates any change in the law that might affect the
ALJ's rationale or Dr. Fischer's opinions. For example, nowhere in this section of her brief does
Shannon point to a particular domain, compare and contrast it with a broad area of functioning,

and tell us how or why the ALJ's decision might be different under current law. Shannon simply

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274-83.) Shannon argues that this additional evidence constituted new and material evidence
under 20 C.F.R. § 416.1470(b) and that the Appeals Council erred by finding the evidence
immaterial. Further, Shannon argues that the Appeals Council erred by not adequately
explaining its basis for denying full review.

Section 416.1470(b) of Title 20 of the Code of Federal Regulations provides that

[if] new and material evidence is submitted, the Appeals Council shall consider

the additional evidence only where it relates to the period on or before the date of

the administrative law judge hearing decision. . . . [The Appeals Council] will

then review the case if it finds that the administrative law judge's action, findings,

or conclusion is contrary to the weight of the evidence currently of record.

We review de novo the correctness of the Appeals Council's findings as to whether the evidence
is new, material, and related to the period on or before the date of the administrative law judge's
decision. Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997); Eads v. Sec'y of the Dep't of

Health & Human Servs., 983 F.2d 815, 817 (7th Cir. 1993). But absent any such legal error, the
Appeals Council's decision to deny review is discretionary and unreviewable. Perkins, 107 F.3d
at 1294; Yousif v. Chater, 901 F. Supp. 1377, 1382 (N.D. Ill. 1995); Fugate v. Shalala, No.

92 C 5358, 1993 U.S. Dist. LEXIS 13683, at *38-39 (N.D. Ill. Sept. 23, 1993).

In its denial letter, the Appeals Council explained that "where new and material evidence
is submitted with the request for review, the entire record will be evaluated and review will be
granted where the Appeals Council finds that the Administrative Law Judge's actions, findings,
or conclusion is contrary to the weight of the evidence currently of record." (R. at 4.) The
Appeals Council then stated that it "considered the contentions raised in [Shannon's counsel's}

letter dated January 25, 2001, as well as the additional evidence [from Aunt Martha's Youth

Service Center]," but "concluded that neither the contentions nor the additional evidence

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Judgment and Shannon's Motion for Remand pursuant to 42 U.S.C. § 405(g). The

Commissioner's final decision is affirmed.”

I. Procedural Background

On July 31, 1997, Ms. Burling applied for SSI on behalf of Shannon, alleging that
Shannon was disabled as of July 1, 1996, due to asthma and impairments caused by
developmental delays. (R. at 80-92.) The Social Security Administration denied Shannon's
application initially and upon reconsideration. (R. at 93, 100-02, 105, 110-13.) Shannon
requested review of the decision before an administrative law judge. (R. at 114.) On August 19,
1999, the ALJ held a hearing, eliciting testimony from Shannon and Ms. Burling, who appeared
with counsel, and Dr. William Fischer, a medical expert. (R. at 46-47.) In a written decision,
dated September 21, 1999, the ALJ found Shannon not disabled based on the testimony and the
medical evidence. (R. at 30-31.)

On November 15, 1999, Shannon requested that the Appeals Council review the ALJ's
decision. (R. at 15.) After making the request, Shannon submitted additional evidence for the
Appeals Council to consider. On March 8, 2001, the Appeals Council denied Shannon's request
for review, indicating that it "considered" the additional evidence but found that the additional
evidence did not provide a basis for changing the ALJ's decision. (R. at 4.) The ALJ's decision
thereby became the final decision of the Commissioner. 20 C.F.R. § 416.1481. Shannon now

seeks judicial review of that decision pursuant to 42 U.S.C. § 1383(c)(3).

2 The parties have consented to have this Court conduct any and all proceedings,
including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(b).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

APR 2 4 2002

SHANNON BURLING, a minor, by her mother
and next friend, Patricia Burling,
Plaintiff, Case No. 01 C 3189

Magistrate Judge
Martin C. Ashman

Vv.

JO ANNE B. BARNHART,
Commissioner of Social Security,"

Defendant.

MEMORANDUM OPINION AND ORDER

Shannon Burling, by her mother and next friend, Patricia Burling ("Ms. Burling"), seeks
judicial review of the Commissioner's final decision denying Shannon's application for
Supplemental Security Income ("SSI"). Shannon moves this Court to set aside the
Administrative Law Judge's (the "ALJ") decision because of a change in the law, because the
Appeals Council committed an error of law when deciding whether to grant full review, and
because of additional evidence submitted to this Court pursuant to 42 U.S.C. § 405(g). In
addition, Shannon contends that the ALJ erred by ignoring certain evidence and by failing to
discuss specific listings. Lastly, Shannon claims that substantial evidence does not support the
ALI's findings that Shannon did not meet Section 112.02 or Section 112.11 of the Listing of

Impairments. For the reasons set forth below, this Court denies Shannon's Motion for Summary

' Pursuant to Federal Rule of Civil Procedure 25(d)(1), Jo Anne B. Barnhart is
automatically substituted as defendant in place of Larry Massanari, the original defendant in this

case.


Under the interim final rules, if a child had an impairment or combination of impairments that
did not meet or was not medically equivalent in severity to a listed impairment, then the
administrative law judge was to assess all of the functional limitations caused by the child's
impairments to determine if the child's impairments were functionally equivalent in severity to
any listed impairment. 20 C.F.R. § 416.926a(a) (1998). If the functional limitations caused by
the impairments were the same as the disabling functional limitations caused by a listed
impairment, then the child's impairments would be considered equivalent in severity to the listed
impairment. Jd.

One way that administrative law judges could determine functional equivalence under the
interim final rules was to evaluate the effects of the child's impairments on five broad areas of
development or functioning: cognitive/communicative development, motor development, social
development, personal development, and concentration, persistence, or pace. 20 C.F.R.

§ 416.926a(c)(5)(iti) (1998). An extreme limitation in one area or a marked limitation in two
areas directed a finding of functional equivalence. Id. § 416.926a(b)(2). Marked limitation
meant a valid test score that was two standard deviations or more below the norm for the test
when a standardized test was used to measure functional abilities. Jd. § 416.926a(c)(3)(i)(A).
For children from ages three to eighteen, marked limitation also meant more than moderate and
less than extreme. Id. § 416.926a(c)(3)(i)(C).

The final rules, which went into effect on January 2, 2001, which were applied by the
Appeals Council on review, and which the parties agree must be applied by this Court on review,
see Hickman, 187 F.3d at 688, continue to require two marked limitations or an extreme

limitation for purposes of establishing functional equivalence. 20 C.F.R. § 416.926a(a) (2001).

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points out that the law has changed and asks for a remand. Surely, it takes a little more than that
to receive such relief.

We have reviewed the pertinent regulations and parts of the federal register ourselves, but
find no apparent basis for granting Shannon's request for remand. It is not as if the change in law
advanced by Shannon affected the weight of a particular piece of evidence relied on by the ALJ
or created some standard that now compels a finding that Shannon is disabled. We note that, in
general, the domains are not too different from the broad areas of functioning. Compare 20
CFR. § 416.926a (1998), with 20 C.F.R. § 416.926a (2001). No sea change took place with the
coming of the domains. Each domain can be traced to a particular broad area of functioning, or
two. Basically, the same criteria apply and the same evidence that was used by administrative
law judges in the past to determine a claimant's limitations under one of the broad areas of
functioning will be used by administrative law judges in the future to determine a claimant's
limitations under one of the domains. In many cases, it appears, the end result should be the
same.

We recognize the possibly for differing results. Again, the problem here is that Shannon
has failed to sufficiently present any of these possibilities, in relation to her case, to us for review.
As a result, we find no basis for remanding the case to the ALJ to reconsider any findings in light

of current law.

B. Denial of Review
After the ALJ issued his decision, Shannon submitted additional evidence to the Appeals

Council from Aunt Martha's Youth Service Center diagnosing Shannon with ADHD. (See R. at

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