functional limitations Robert’s impairments caused and concluded that Robert had marked
limitation in the area of speech and language, no limitation in the area of motor development,
less than marked limitation in the area of social development, less than marked limitation in the
area of personal development, and less than marked limitation in the area of concentration,
persistence and pace. Record at 16-18. The ALJ considered that Robert had no chronic illnesses,
is not in a structured or highly supportive setting and does not use adaptations; he also considered
that Robert is taking Ritalin, with a fair degree of success and no noted side effects. Record at
18. The ALJ noted that Robert was prescribed speech therapy sessions, which seemed to help,
but that he was not great about adhering to the therapy schedule set for him. Jd. Based on all of
these factors, the ALJ concluded that Robert’s impairments did not result in marked and severe
functional limitations. Record at 19. Accordingly, the ALJ concluded that Robert was not
disabled. Id.

Judicial review of the ALJ’s decision is limited to determining whether the ALJ applied
the correct legal standards in reaching a decision and whether there is substantial evidence in the
record to support the findings. 42 U.S.C. §405(g); see also Scivally v. Sullivan, 966 F.2d 1070,
1075 (7th Cir. 1992). The Brindisis do not argue the former; they argue that the ALJ’s decision
is not supported by substantial evidence. The “substantial evidence” standard “requires no more
than ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971); Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995)). In
deciding whether substantial evidence exists to support the ALJ’s decision, the district court

“may not decide the facts anew, re-weigh the evidence, or substitute its own judgment for that of


The Brindisis also argue that we should remand the case because the ALJ failed to “build
a bridge” to support his findings that Robert’s impairments do not meet or medically equal the
requirements of a listed impairment. Initially, we note that this is not a case where the ALI is
alleged to have failed to consider certain evidence or certain lines of testimony that support the
claimant’s case; the ALJ thoroughly reviewed the evidence in the context of his functional
equivalence analysis and individualized assessment of Robert’s abilities. Nor is this a case where
the ALJ’s ultimate decision to deny benefits comes out of nowhere, It is true that ALJ Caras
failed to explain the specific reasons behind his findings that Robert’s impairments did not meet
or medically equal a listed impairment. But he unquestionably “built a bridge” between the
evidence and his ultimate decision to deny benefits, which is what the case law requires. See,
e.g., Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (written decision must provide
“logical bridge from the evidence to [the] conclusion” that allows the reviewing court a “glimpse
into the reasoning behind [the] decision to deny benefits”).

Moreover, as have noted, there was no evidence in the record to contradict the ALJ’s
findings on the hearing impairment; the only evidence the Brindisis cite-even now-—is the
audiogram discussed above, which supports the ALJ’s finding. And although there was arguably
evidence to support Robert’s arguments on the anxiety disorder and attention deficit disorder, the
ALJ discussed those requirements in great detail in the context of the functional equivalence
analysis. In short, the ALJ gave more than a “glimpse” into the reasoning behind his decision,
and the Court will not remand on this basis.

None of this is to say that Robert is healthy. Although, as we have concluded, Robert’s

impairments did not render him disabled within the meaning of the law, as of the time of the


medical evidence shows that Robert’s recurrent ear infections and resulting hearing loss affected
his speech and language to the point where even his mother could scarcely communicate with
him. But, the Commissioner argues, Robert did not meet the first part of the listing because he
was able to hear at an average of 40 decibels in his better ear and the listing requires that he be
unable to hear at an average of 40 decibels or more in the better ear. According to an audiogram
administered to Robert on December 18, 1995 by Children’s Memorial Hospital’s Department of
Communicative Disorders, Robert’s hearing levels were as follows: in his left ear, 50 decibels at
500 Hertz, 40 decibels at 1000 Hertz, 30 decibels at 2000 Hertz, and 40 decibels at 4000 Hertz;
in his right ear, 50 decibels at 500 Hertz, 60 decibels at 1000 Hertz, 50 decibels at 2000 Hertz
and 40 decibels at 4000 Hertz. Record at 97. As the Court understands this test, the marked
levels represent Robert’s hearing threshold; he could hear at those levels but could not hear
anything below those levels. Thus, at least at the time of this audiogram, Robert could hear, on
average, 40 decibels and above in his better ear, but could not hear, on average, below 40
decibels. Robert therefore did not satisfy the requirements of the hearing impairments listed in
Appendix 1. While it is true that Robert came very close to meeting this requirement, he
nonetheless fell short, and this is a bright line test. The audiogram results support, rather than
compel reversal of, the ALJ’s findings on this issue.

As an aside, the Court notes that the Commissioner’s citation to the Audiology
Awareness Campaign’s Internet website as a means of interpreting the audiogram was
particularly unhelpful; the Seventh Circuit has noted that evidence pulled off the web without any
kind of authentication is “adequate for almost nothing.” See United States v. Jackson, 208 F.3d

633, 637 (7th Cir. 2000) (citing Sz. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773,


the [ALJ].” Powers, 207 F.3d at 434-35. Although the Court must “not act as an uncritical

rubber stamp of the Commissioner’s decision,” see Howell v. Sullivan, 950 F.2d 343, 347 (7th

Cir. 1991), the Court must affirm the ALJ’s decision-even if some evidence also supports the
claimant’s argument-if the findings and inferences reasonably drawn from the record are
supported by substantial evidence. See 42 U.S.C. 405(g); Betancourt v. Apfel, 23 rE Supp. 2d
875, 879-80 (N.D. Ill. 1998) (citing Pope v. Shalala, 998 F.2d 473, 480 (7th Cir. 1993)). The
Court may reverse the ALJ’s decision “only if the evidence ‘compels’ reversal, not merely
because the evidence supports a contrary decision.” Betancourt, 23 F. Supp. 2d at 880 (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

Under this standard, the Court must affirm the ALJ’s decision. The ALI concluded,
without discussion, that none of Robert’s impairments, either alone or in combination, equals a
listed impairment. Record at 14. Robert argues that this conclusion was not supported by
substantial evidence. As explained below, we disagree.

Robert first argues that his impairments met or medically equaled the requirements of the
hearing impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1, §102.00, which covers
special senses and speech. According to the listing, a child who is five years old or older at the
time of the adjudication is disabled if he has an “[i]nability to hear air conduction thresholds at
an average of 40 decibels (db) or greater in the better ear, and a speech and language disorder
which significantly affects the clarity and content of the speech and is attributable to the hearing
impairment.” Jd., §102.08(B)(3). The Commissioner concedes that Robert satisfied the second
half of $102.08(B)(3), i.e., that he had a speech and language disorder, attributable to his hearing

impairment, that significantly affects the clarity and content of his speech, and rightly so: the



Robert demonstrates decreased social interaction behavior and increased

separation anxiety. He is a shy young boy who requires ample time to “warm up”

to the clinician before participating in play interaction. Robert appears to get

frustrated when he can not express his wants or needs and usually acts out

behaviorally by getting angry, screaming, and kicking. Overall, Roberts social

and behavioral skills are approximately one year below age level. . . . He also

demonstrates inappropriate amounts of seperation anxiety and poor interactional

skills.

Record at 120. A June 1998 speech and language evaluation stated that “Robert has a difficult
time separating from his parent, and requires much coaxing to participate in activities,” but noted
that his “[a]ttention skills appear improved since last evaluation.” Record at 187.

Additionally, and maybe most importantly, at the hearing before the ALJ, Robert’s
parents testified that Robert is able to sit and concentrate when he is taking Ritalin (though not
when he is off the medication). Record at 198. They also testified that Robert plays well with a
neighbor child, and that his motor and physical activities are not limited in any way. Record at
198-99. Both parents indicated that Ritalin, which Robert had been taking for about a year at the
time of the hearing, helps and resolves many of Robert’s issues. Record at 196 (Ritalin helps),
198 (Ritalin helps Robert to stay quiet so that he can listen and learn), 202 (“Right now he’s not
on his medication but if he was, he’d be sitting there listening to you and looking at you and he
probably would have answered you.”; “When he’s on his medication, he’s fine. He'll listen. I
can talk to him once. He’ll do what I say. When he’s off it, ’ve got to keep talking loud,
yelling.”), 203 (the Ritalin sometimes slows Robert’s speech, which makes him easier to
understand). Again, although this evidence shows that Robert has some limitations (at least with

respect to social functioning), it also supports the ALJ’s finding that any limitation he had was

less than “marked.”


Minute Order Form (9697)

, \p ~ \Parmiea States District Court, Northern District of Illinois

Name df Ajsigned Judge Sitting Judge if Other
he Aan Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 00 C 6495 DATE 12/14/2001
CASE Brindisi vs. Massanari
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:
qd) im} Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) Q Answer brief to motion due. . Reply to answer brief due. _
(4) o Ruling/Hearing on____set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) im) Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) Oo 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]
OFRCP4(m) (General Rule21 OOFRCP41(a)(1) OO FRCP41(a)(2).
ao =f [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons set forth on the
attached order, the Court affirms the ALJ’s decision. The Court denies Tina Brindisi’s motion for
summary judgment (6-1) and grants the Commissioner’s motion for summary judgment (10-1). Judgment
is entered in favor of the Commissioner.
a1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
Notices mailed by judge’s staff. DEC 17 200t
Notified counsel by telephone, =~ duetodiend
a | Docketing to mail notices.
+7 | Mail AO 450 form. fev , ;
Copy to judge/magistrate judge. . )
SENG
courtroom CE GEC ES aypiege date maid notice
bi bee bo ard S
OR deputy’s ANTE Oe
initiats
Date/time received in
central Clerk’s Office tmaling deputy intals



hearing before the ALJ, he unquestionably had a serious hearing impairment and serious speech
and language issues as a result of his seemingly constant ear infections. But the record in this
case covers a distinct and finite time period, and the Court has no way of knowing whether
matters have improved or deteriorated since then. Although for Robert’s sake and the sake of his
family we hope for the former, if he is worse off now than he was in 1998, when the ALJ issued
his decision, Robert can always reapply for benefits. The fact that substantial evidence existed in
1998 to warrant a denial of benefits does not necessarily mean that the same would be true today.
CONCLUSION

For the reasons explained above, the Court affirms the ALJ’s decision. The Court
denies Tina Brindisi’s motion for summary judgment [6-1] and grants the Commissioner’s
motion for summary judgment [10-1]. The Clerk is directed to enter judgment in favor of the
Commissioner.

Dated: December 14, 2001

MATTHEW F. KENNELLY
United States District Judge

10


775 (S.D. Texas 1999)), Any necessary explanations ought to come from the record itself. In
this case the record was sufficient.

The Brindisis also argue that Robert’s impairments met or medically equaled the
requirements of the impairments listed in §112.06 (Anxiety Disorders) and §112.11 (Attention
Deficit Hyperactivity Disorder). Assuming Robert could satisfy the primary requirements for
these disorders (excessive separation anxiety for the former and marked inattention,
impulsiveness and hyperactivity for the latter), he would also have to have demonstrated at least
two of the following: marked impairment in age-appropriate cognitive/communicative function,
marked impairment in age-appropriate social functioning, marked impairment in age-appropriate
personal functioning, or marked difficulties in maintaining concentration, persistence, or pace.
See 20 C.F.R., Part 404, Subpart P, Appendix 1, §§ 112.02(B)(2), 112.06(B), 112.11(B).
Although Robert arguably experienced difficulties in each of these areas, there is substantial
evidence in the record to support the ALJ’s findings, made in the context of the functional
equivalence analysis, that Robert suffered marked impairment-i.e., an impairment that “seriously
interferes with” the child’s ability to function, 20 C.F.R. §416.926a(e)(2)(i)—in only one area, the
cognitive/communicative area.

With respect to social and personal functioning and his ability to maintain concentration
persistence and pace, the record reveals as follows. As of June 29, 1994, Robert “enjoy[ed]
playing with cars and trucks and attempts to sing along with songs he hears on TV.” Record at
160. He is basically able to dress himself, brush his own hair and teeth and use the bathroom on
his own. Record at 199, 88, 119. A February 26, 1996 pediatric speech and language evaluation

from Ravenswood Hospital stated that


from a severe impairment, he moves on to step three; if not, the child is determined to be not
disabled and the process ends. At step three, the Commissioner determines whether the child’s
impairment meets or equals (medically or functionally) one of the impairments listed in 20

C.F.R. Ch. IU, Part 404, Subpart P, Appendix 1. In making this determination, the

Commissioner considers whether the impairment prevents the child from functioning
independently, appropriately and effectively in an age appropriate manner. 20 C.F.R.
§416.926a(a). If the Commissioner finds that the child suffers from a severe impairment that
meets or equals something in the listing, he must find the child to be disabled and the inquiry ,
ends; if, on the other hand, the Commissioner finds that the child’s impairment does not meet or ~
equal a listed impairment, the Commissioner must do an “individualized functional assessment”
to determine whether the child has an impairment or combination of impairments that would be
of comparable severity to an impairment that would disable an adult. 20 C.F.R. §416.924d(a).
The ‘Comunisgioner considers the nature of the impairment, the child 5 age and ability to be tested
at that age, the ability to perform age appropriate activities and other relevant factors. 20 C.F.R.
§416.924d(a).

ALJ Caras applied this analytical framework to Robert Brindisi’s case and correctly
concluded, at step one, that Robert, who was only six at the time of the hearing, clearly had not
engaged in any kind of gainful activity. “Record at 13. At step two, the ALJ concluded that
Robert suffered from a combination of severe impairments including speech and language delays,
recurrent otitis media and attention deficit disorder. Record at 14. The ALJ concluded that
Robert’s claim failed at step three, because none of those impairments met or equaled the

qualifications of any impairment listed in the regulations. Jd. The ALJ then evaluated the



July 6, 1992, the day he was born. The agency denied Robert Brindisi’s application initially and
on reconsideration, and his mother requested a hearing before an administrative law judge.
Administrative Law Judge Peter Caras, to whom the case was assigned, held a hearing in
Brindisi’s case on June 24, 1998. Tina Brindisi and her son both appeared, as did Robert’s father
(also named Robert). They were represented by counsel, and both Tina and Robert (the elder)
testified, answering questions from both ALJ Caras and their attorney. Robert, though present,
did not respond to the ALJ’s questions and said nothing at the hearing. In a decision dated
September 14, 1998, ALJ Caras concluded that Robert was not disabled for purposes of
entitlement to SSI. The ALJ’s decision became the final agency decision when the Appeals
Council denied the Brindisis’ request for review. See 20 C.F.R. §404.981. Tina Brindisi then
filed this lawsuit on Robert’s behalf, seeking review of the agency’s decision and an award of
disability insurance benefits. Both the Brindisis and the Commissioner have moved for summary
judgment.

In determining whether a child is disabled within the meaning of the Social Security Act,
the Commissioner employs a multi-step analysis. The Commissioner first asks whether the child
is currently engaged in substantial gainful activity, i.e., work that involves doing significant and
productive physical or mental duties that are done, or intended to be done, for pay or profit. 20
CER. §§404.1520(a)(b), 404.1510. The Commissioner next asks whether the child is suffering
from a severe impairment, i.e., one which as an impairment or combination of impairments
causes more than a minimal functional limitation. 20 C.F.R. §416.924(b). In deciding whether
the impairment or impairments are severe the Commissioner considers them in relation to the

child’s age. 20 C.F.R. §416.924b(a)(1). If the Commissioner concludes that the child suffers


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

TINA BRINDISI, on behalf of
ROBERT BRINDISI, a minor,
Plaintiff,

v. Case No. 00 C 6495

LARRY MASSANARI, Acting
Commissioner, Social Security
Administration,

DOCKETED

DEC 17 2001

weve eee

Defendant.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Robert Brindisi, now nine years old, has suffered repeated and persistent ear infections
since before his second birthday. By the time he tured six, he had had nine different surgeries to
insert or replace tubes in his ears to help drain the fluid and allow him to hear. Asaresultof
Robert’s repeated ear problems, his speech and language abilities are delayed; he was also
diagnosed with attention deficit disorder, though it is not entirely clear that that disorder arises
from or is related to his speech and hearing problems. Robert also appears to suffer separation
anxiety.

Tina Brindisi, Robert’s mother, filed a claim for Supplemental Security Income for
Robert. In that application, she alleged that Robert suffered from bad hearing, delayed speech,

allergies' and hyperactivity; she claimed that Robert was disabled by these injuries beginning on

'This appears to be the only mention of allergies as a basis for Robert’s disability claim.
There is absolutely nothing in the record about Robert’s allergies; the medical evidence does not
mention allergies, and neither of Robert’s parents said anything about allergies before the ALJ.

\