Rexanne Z., o/b/o C.M., a minor, v. Andrew Saul, Commissioner of Social Security
No. 18 CV 50408
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS WESTERN DIVISION
Magistrate Judge Lisa A. Jensen
April 29, 2020
In 2008, when he was just over three years old, C.M. was found to be disabled based on several mental impairments. In 2015, when he was nine years old, the Agency concluded that he had medically improved and was thus no longer disabled. After a hearing, the administrative law judge agreed with this conclusion, finding that C.M. continued to have some mental limitations, but that they were not marked in any of the applicable child domains. The ALJ relied heavily on six teacher questionnaires. This appeal is filed by C.M. s grandmother and legal guardian.2 Her main argument is that the ALJ relied on select portions from these questionnaires while downplaying other portions favorable to C.M. The Court does not find this or plaintiff s other arguments sufficient to justify a remand.3
BACKGROUND
In September 2013 and continuing through at least 2016, C.M. received counseling services at Rosecrance. It is not known exactly how frequent or consistent these visits were, and there was a gap of almost a year in 2015, according to plaintiff s summary. Dkt. #14 at 2.
From kindergarten to third grade, C.M. had an individual education plan (“IEP“). Id. at 3. In December 2014, he was found to be no longer eligible for continuing IEP services because he was not significantly behind his peers. R. 21.
In 2015, C.M. s fifth grade teacher (Heather Tryggestad) completed a teacher questionnaire. See Ex. 8E. She stated that C.M. had a math level of a grade 3.6 and a reading level of 4.2. R. 214.
Sometime around March 2015, the continuing disability review was conducted. C.M. was then nine years old. He was found no longer disabled as of March 1, 2015.
On October 16, 2015, Dr. Mark Langgut, a psychological examiner, interviewed C.M. for 50 minutes. He administered a Weschler IQ test and then prepared a report. Ex. 15F. C.M. received a composite IQ score of 84, which fell in the low to average range. R. 496. Dr. Langgut listed the following conditions in the Axis I diagnosis: (i) trauma reaction of childhood, (ii) adjustment disorder, and (iii) childhood abuse/neglect victim. R. 497.
The administrative hearing was held on February 13, 2018. C.M. and his grandmother testified. Both the ALJ and plaintiff s counsel asked questions. Relevant portions of this testimony will be discussed below.
On March 29, 2018, the ALJ issued a 16-page decision. The ALJ found that, although C.M. still had “some limitations” from all his mental impairments, the “clear balance” of the
DISCUSSION
Plaintiff s argument for a remand is mostly a factual argument. She has not asserted that the ALJ used the wrong legal standard, nor has she offered much serious discussion on how the legal standards should be interpreted. Given that there is no dispute over the legal framework, the Court will provide only a brief overview. Both the ALJ s decision, as well as the regulations cited below, provide a more comprehensive discussion.
To recap, the ALJ first applied the three-step framework for assessing medical improvements. See
Plaintiff challenges the ALJ s findings regarding the first three domains. As noted above, the only argument is that the ALJ engaged in cherrypicking. This argument can be considered in two phases—first the teacher questionnaires and then the remaining arguments.
I. The Teacher Questionnaires.
The ALJ relied on six teacher questionnaires, one from 2015 when C.M. was in the fifth grade and five from 2018 when he was in the seventh grade. Everyone seems to agree that these questionnaires are the central pieces of evidence. An argument could be made that the analysis both starts and ends with them.
The ALJ repeatedly mentioned the questionnaires throughout the opinion, and specifically cited to them as a key rationale for each of the three domains. The ALJ gave great weight to them because they were “mostly consistent” with each other and because these teachers were “uniquely able” to speak to C.M. s abilities because they “consistently observed” him interacting with students and working in the classroom.4 R. 29. Plaintiff does not challenge the general proposition that the teacher questionnaires in this case are a highly credible source of evidence, if not the most important pieces of evidence. In fact, plaintiff is relying on parts of these same questionnaires to affirmatively build her case that C.M. is disabled. And the Seventh Circuit likewise has held that teacher questionnaires are important. See, e.g., Hopgood v. Astrue, 578 F.3d 696, 700-03 (7th Cir. 2009) (remanding because the ALJ didn t fully consider the
Having built up their importance, it is time to look at these questionnaires more closely. All six teachers completed the same Social Security form entitled “Teacher Questionnaire.” The form has a separate section for each domain. Its layout is important to the arguments here. Rather than offering a verbal description, it will be easier to provide a screenshot. The Court will provide two. The first is from the questionnaire completed by Misty Murphy, plaintiff s English teacher. Set forth below is her analysis of the first domain:
The second example comes from the questionnaire completed by Denise Pape, C.M. s science teacher in 2018. This screenshot addresses the second domain:
To understand plaintiff s argument, you need to first notice that there are two main boxes on each page. The first big box on the top half of the page (i.e. the checkbox ratings grid) is referred to in shorthand by plaintiff as the “ratings key” while the box at the bottom with the handwritten comments is referred to by plaintiff as the “paragraph statements.” In a nutshell, plaintiff s theory is that these two boxes are in conflict, and that the ALJ failed to resolve this conflict, relying mostly on the ratings keys while mostly downplaying the paragraph statements.
The Court is not persuaded by this argument for several reasons, the main one being that the ALJ reasonably could have believed there was no conflict. Before discussing these reasons, it is important to establish a preliminary point plaintiff s argument skips over. This is the claim that, if these ratings keys were viewed by themselves, they would strongly support the ALJ s findings. As the ALJ noted several times, when viewed in the aggregate, the teacher ratings indicate that plaintiff s limitations were, roughly, in the mild category. This is a very generalized conclusion distilling a lot of different responses, but it is a conclusion that is nonetheless supported by substantial evidence. To be sure, the questionnaires include multiple sub-categories for each domain, and there is no single bottom-line rating for each domain. Also, each teacher included a mixture of ratings, and there is some variation among the six teachers, with some rating C.M. s limitations as being more severe than others. For example, in the screenshot above from Ms. Murphy s questionnaire, she rated C.M. as having “obvious problems” in three subcategories, “mild problems” in five sub-categories, and “no problems” in two sub-categories. By contrast, Ms. Tryggestad rated him in this first domain as having “obvious problems” in no
One other issue not addressed directly by the parties is how to correlate the rating phrases used in the teacher questionnaires with the phrases used in the regulations. Both of them use a five-point scale. Neither side cited to any case law or regulatory guidance on how to correlate the two rating scales. Absent any contrary authority, the most natural mapping in this Court s opinion is that a “marked” limitation is equivalent to a “serious problem” on the teacher questionnaire. This would make sense in that both are the fourth points on the five-point ascending scales. Also, it fits with the statement in the regulation that a marked limitation is one that “interferes seriously” with the claimant s abilities. See
This leads us back to plaintiff s conflict theory. Plaintiff believes that certain of the teacher s handwritten statements in the second boxes showed that they believed C.M. had marked limitations. Plaintiff states that these paragraph statements are in “conflict” with the ratings keys.5
The Court finds this argument to be speculative. As a conceptual matter, this theory must overcome a steep hurdle because it goes against the normal presumption that the person completing the document was acting rationally. To illustrate this point, first consider a classic “conflict of evidence” argument where one doctor opines X and another opines Y. In that case,5
But contrast these examples with the present case. Plaintiff s theory is that these teachers, acting in what would appear to be an irrational manner, set forth two inconsistent opinions not just in the same document, but on the same page of that document. Like the famous case of Dr. Jekyll and Mr. Hyde, this would appear to be a strange outcome. Put another way, absent some independent evidence to support this theory, the ALJ reasonably could have proceeded under the assumption that these teachers were rationale and informed when they completed these forms. That is, they were aware of their ratings given at the top of the page and were not trying at the bottom of the page to immediately contradict those ratings without acknowledging they were doing so. Presumably, if they had changed their mind, they could have erased their answers and changed them. Instead, the more rational assumption—and certainly one that is a reasonable interpretation—is that the teachers meant for their paragraph statements to be read consistently with the ratings, meaning that they did not believe that there was a conflict. And it is further reasonable to suppose that this is how the ALJ interpreted these statements. The Court finds no error in this commonsense interpretation. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010) (“we give [an ALJ s opinion] a commonsensical reading.“).
- Has a hard time removing distractions (R. 693)
- Needs to be checked on frequently (R. 693)
- Works best with an empty desk so he can t lose focus (R. 694)
- Fluctuates on completing work and staying on task. Usually he is fine, but if he is off task he is off for a length of time (R. 702)
Dkt. #22 at 1. As the citations indicate, the first three statements are from Ms. Murphy and the fourth is from Ms. Pape. Plaintiff believes that these statements are in conflict with the teacher ratings. But this contention is hard to prove or disprove because these statements are vague and not necessarily inconsistent with the corresponding ratings. For example, it is not clear why Ms. Murphy s comment that plaintiff had a hard time removing distractions was inconsistent with her ratings, which included “obvious” limitations in a few of the subcategories. Ms. Pape s statement that C.M. fluctuates in staying on task but is “usually” fine seems like a middle-ground position that reasonably could be viewed as being consistent with both Ms. Pape s ratings, as well as with the ALJ s findings.6
One final point that should not be lost in this discussion. The ALJ did not entirely ignore the paragraph statements. As plaintiff recognizes, the ALJ discussed some of them, including two from Ms. Murphy. See Dkt. #14 at 8 (plaintiff: “The ALJ did acknowledge [Ms. Murphy s] statements that C.M. has a hard time removing distractions and needs to be checked on
In sum, contrary to plaintiff s claim that the ALJ “rejected” the handwritten comments, the Court finds that the more commonsensical reading is that the ALJ simply viewed them as being consistent with the ratings keys. The issue in this case is the degree of C.M. s limitations, not an either-or question of whether there are any limitations at all. Plaintiff s arguments too often fall into the latter category.
II. The Other Cherrypicking Arguments.
The remaining arguments are briefer and much less developed. The Court does not find that they justify a remand either individually or collectively.
No IEP in 2014. In December 2014, C.M. s school determined that he did not qualify for continuing IEP services he had been receiving for approximately three years. Dkt. #14 at 3. Plaintiff argues that the “lack of an IEP alone is not conclusory that C.M. had no marked impairments.” Id. at 9 (emphasis added). This argument aims at a straw man. Although the ALJ mentioned the lack of an IEP as one reason supporting the decision, the ALJ clearly did not claim that this reason “alone” justified the decision. As discussed in Section I, the teacher questionnaires were the main piece of evidence. The Court finds that the ALJ s decision would still be supported by substantial evidence even if this IEP rationale were disregarded. Plaintiff has not raised any argument that the ALJ s discussion rested on a factual error.
Therapy Notes from Rosecrance. Plaintiff argues that the ALJ gave insufficient weight to therapy notes from C.M. s counseling sessions at Rosecrance over several years. Plaintiff believes these records demonstrated more serious problems than the ALJ found. This argument is unavailing for several reasons.
First, the mere fact that C.M. reported some difficulties at some therapy visits is not incompatible with the ALJ s findings. The ALJ acknowledged the Rosecrance records but found that, on the whole, they did not undermine the ALJ s conclusions. See R. 21 (noting that “the evidence reflects some fluctuations in symptoms, but there is no evidence of significant or persistent mental status deficits” in the Rosecrance therapy notes). This is the same problem of vagueness in that these statements do not necessarily rebut the ALJ s specific findings.
Second, plaintiff employs her own brand of cherrypicking by isolating a few statements from the broader continuum of statements. For example, plaintiff cites to a statement from June 2016 stating that C.M. had shown a “lack of progress in developing communication skills.” Dkt. #14 at 12 (citing R. 593). But this statement, which is vague (see point #1), is only one of several from these notes. Plaintiff does not include the other statements, including that C.M. “demonstrated coherence and clear concentration and attention throughout the session” and that C.M. “was not very talkative, but was cooperative with directions.” R. 593. The difficulty comes in trying to link these statements back to the specific criteria for the three domains. For example,
C.M. s Testimony About Arguing With Teachers. Plaintiff argues that the ALJ overlooked the fact that C.M. argued with his teachers. But the only evidence plaintiff cited to support this claim is in the following brief exchange with the ALJ:
Q So you maybe have four, five, six different teachers during the day. Is that right?
A Mm-hmm.
Q Okay. Now how do you get along with your teachers? Do you get along with them well or not so much?
A Some not so much; some yes.
Q Okay. The ones that you don t get along with all that well, what s the issue with them? What problems have you been having?
A Problems?
Q I mean are they not nice to you, or do you have arguments with them, or why not so well with those?
A Arguments sometimes.
R. 46 (emphasis added). The exchange ends there. This testimony is not especially compelling—it is short and vague (“sometimes” and “arguments” are not defined) and was prompted by leading questions (see italicized portions).
But the bigger problem is that it is not integrated with the other evidence—most notably, the teacher questionnaires. If C.M. were arguing with his teachers in the way suggested by
State Agency Consultants. Plaintiff in her opening brief argues that the ALJ “relied heavily” on the opinions from the state agency physicians. Dkt #14 at 7, 12. But in her reply she seems to reverse course, stating that “the ALJ himself did not claim to have relied on the opinions of the state agency reviewing consultants.” Dkt. #22 at 2. This argument is unclear and undeveloped, and it is a non-issue in any event because the Court finds that the ALJ s decision would rest on substantial evidence even without these opinions.
In conclusion, the Court agrees with the Government when it asserts that a remand would essentially require this Court to substitute its judgment in place of the ALJ s judgment, one this Court finds is reasonable. See Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012) (a court should not remand “if reasonable minds can differ over whether the applicant is disabled“).
CONCLUSION
For the foregoing reasons, plaintiff s motion for summary judgment is denied; the government s motion is granted; and the decision of the ALJ is affirmed.
Date: April 29, 2020 By: ___________________________
Lisa A. Jensen
United States Magistrate Judge