Saracco v. Colvin, 1:15-cv-06208

Plaintiff Tanya Saracco sought childhood SSI for her daughter T.H. (born Aug. 13, 2004); application filed Dec. 31, 2011; ALJ denied benefits on Nov. 12, 2013; Appeals Council denied review after counsel submitted additional materials and this suit followed.
Psychological testing: Dr. Langgut (2010) FSIQ 77 (borderline); Dr. Langgut (Feb. 2012) FSIQ 68 (extremely low) and ADHD diagnosis; NICHQ/Vanderbilt and school reports documented significant attention/behavior problems.
School IEPs: March 2012 IEP provided limited pull-out services (17% of school time) and accommodations; March 2013 IEP (submitted only to the Appeals Council) substantially increased services (62% of time removed from general classes) and added larger accommodations.
State reviewers (Hamersma/Havens) found marked limitation in acquiring/using information but concluded impairments did not functionally equal a listing.
ALJ found severe impairments of ADHD and learning disorder, a marked limitation in acquiring/using information, but less-than-marked limitations in attending/completing tasks and other domains; denied disability.
District court granted remand in part: rejected challenge to Appeals Council’s failure-to-consider-IEP claim (IEP not "new"), but remanded because the ALJ failed adequately to develop the record regarding school records/IEP and erred in evaluating the attending-and-completing-tasks domain.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Appeals Council erred by not considering the March 2013 IEP	The 2013 IEP was new, material evidence the Appeals Council should have considered	The IEP was issued before the hearing and was thus not "new" under §405(g)	Denied: IEP was not "new" because it existed before the hearing and was available to claimant
Whether the ALJ failed to obtain a valid waiver of counsel and/or failed to develop the record	ALJ did not properly advise pro se claimant about how counsel could help and failed to inquire whether additional school records (e.g., later IEP) existed	ALJ explained contingency fees and basic role; waiver was adequate; claimant bore some responsibility	Mixed: waiver was valid, but ALJ failed to adequately develop the record by not inquiring about more recent school records; remand required
Whether the ALJ erred in assessing the domain of attending and completing tasks	ALJ undervalued evidence of attention deficits at home and school and ignored accommodations and longitudinal worsening shown by the 2013 IEP	ALJ relied on post-IEP improvements, promotion to next grade, and medication response to find less-than-marked limitation	Remand: ALJ misapplied “whole child” standard, improperly weighed IEP accommodations/grade promotion/medication, and failed to explain inconsistency between marked limitation in acquiring information and lesser finding for attention; holdings require reconsideration on remand

Scott v. Barnhart, 297 F.3d 589 (7th Cir. 2002) (PRWORA changed standard for childhood SSI)
Binion v. Shalala, 13 F.3d 243 (7th Cir. 1994) (elements required for valid waiver of counsel)
Nelms v. Astrue, 553 F.3d 1093 (7th Cir. 2009) (heightened duty to develop record for pro se claimants)
Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345 (7th Cir. 2005) (ALJ must explain analysis with sufficient clarity for review)
Perkins v. Chater, 107 F.3d 1290 (7th Cir. 1997) (definition of "new" evidence under §405(g))
Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696 (7th Cir. 2009) (rejecting ALJ reasoning that signs of ADHD undermine low test results)
Denton v. Astrue, 596 F.3d 419 (7th Cir. 2010) (ALJ may not cherry-pick favorable evidence while ignoring contrary evidence)