The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Patricia H., on behalf of J.R.E., )
)
Plaintiff, )
) Case No.: 20-cv-50431
v. )
) Magistrate Judge Margaret J. Schneider
Kilolo Kijakazi, )
Commissioner of Social Security,1 )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Patricia H. on behalf of J.R.E., a minor (“Plaintiff”)2 appeals the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for supplemental security income. The parties have filed cross motions for summary judgment.
[16, 21]. As detailed below, Plaintiff’s motion for summary judgment [16] is denied and the
Commissioner’s motion for summary judgment [21] is granted.
BACKGROUND
A. Procedural History
On December 19, 2016, Patricia H. on behalf of J.R.E., a minor (“Plaintiff”) filed an
application for supplemental security income. R. 50. This application alleged a disability beginning
on November 1, 2016. Id. The Social Security Administration (“Commissioner”) denied her
application on March 1, 2017, and upon reconsideration on August 28, 2017. R. 160, 168. Plaintiff
filed a written request for a hearing on November 6, 2017. R. 172–74. On September 24, 2018, a
hearing was held by Administrative Law Judge (“ALJ”) Kevin Vodak where Patricia H. appeared
and testified. R. 101–38. Plaintiff was represented by counsel. Id. On September 25, 2019, a
supplemental hearing was held with J.R.E. present at which Patricia H. and medical expert Sai R.
Nimmagadda, M.D., appeared and testified. R. 75–100.
On November 1, 2019, the ALJ issued his written opinion denying Plaintiff’s claims for
supplemental security income. R. 50–68. Plaintiff appealed the decision to the Appeals Council,
and the Appeals Council denied Plaintiff’s request for review. R. 1–4. Plaintiff now seeks judicial
review of the ALJ’s decision, which stands as the final decision of the Commissioner. See 42
U.S.C. § 405(g); Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). The parties have consented
to the jurisdiction of this Court. See 28 U.S.C. § 636(c); [6]. Now before the Court are Plaintiff’s
1 Kilolo Kijakazi has been substituted for Andrew Saul. Fed. R. Civ. P. 25(d).
2 This opinion refers to Patricia H. as Plaintiff when acting on behalf of J.R.E.
motion for summary judgment [16] and the Commissioner’s cross-motion for summary judgment
and response to Plaintiff’s motion for summary judgment [21].
B. The ALJ’s Decision
The ALJ conducted the required three-step analysis to determine whether J.R.E., a minor
child less than 14 months old at the time of her application, was disabled under the Social Security
Act. See 20 C.F.R. § 416.924(a). At step one, the ALJ found that J.R.E. has not engaged in
substantial gainful activity since December 19, 2016, the date the application was filed. R. 53. At
step two, the ALJ found that J.R.E. suffered from the severe impairments of 17% partial thickness
third degree burns requiring skin grafts, developmental delay, and adjustment disorder. R. 53. At
step three, the ALJ found that J.R.E. did not have an impairment or combination of impairments
that met or medically equaled the severity of the impairments listed in 20 C.F.R. § 404, Subpart P,
Appendix 1, specifically addressing listings 101.08, 108.08, 112.04, and 112.15. R. 54–68.
Therefore, the ALJ concluded that J.R.E. was not disabled under the Social Security Act from
December 19, 2016, to November 1, 2019, the date of the decision. R. 68.
STANDARD OF REVIEW
The reviewing court reviews the ALJ’s determination to establish whether it is supported
by “substantial evidence,” meaning “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “more than a
mere scintilla.” Wright v. Kijakazi, No. 20-2715, 2021 WL 3832347, at *5 (7th Cir. 2021).
“Whatever the meaning of ‘substantial’ in other contexts, the Supreme Court has emphasized, ‘the
threshold for such evidentiary sufficiency is not high.’” Id. (quoting Biestek v. Berryhill, 139 S.Ct.
1148, 1153 (2019)). As such, the reviewing court takes a limited role and cannot displace the
decision by reconsidering facts or evidence or by making independent credibility determinations.
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008),
“An ALJ need not mention every piece of medical evidence in her opinion, but she cannot
ignore a line of evidence contrary to her conclusion.” Thomas v. Colvin, 745 F.3d 802, 806 (7th
Cir. 2014) (citing Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012)). Nor can ALJs “succumb to
the temptation to play doctor and make their own independent medical findings,” Rohan v. Chater,
98 F.3d 966, 970 (7th Cir. 1996), or “rely on an outdated assessment if later evidence containing
new, significant medical diagnoses reasonably could have changed the reviewing physician’s
opinion.” Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir. 2018). Ultimately, the court will only
reverse the decision of the ALJ “if the record compels a contrary result.” Gedatus v. Saul, 994 F.3d
893, 900 (7th Cir. 2021) (citations and quotations omitted).
DISCUSSION
ALJs must conduct the three-step analysis prescribed by 20 C.F.R. § 416.924 to assess
whether a minor child is disabled. A claimant is only disabled if all three steps are satisfied. At
step one, the ALJ must find that the claimant is not engaged in substantial gainful activity. 20
C.F.R. § 416.924(a), (b). At step two, the ALJ must determine that the claimant suffers from a
severe impairment, a medically determinable condition resulting in more than minimal functional
limitations. 20 C.F.R. § 416.924(a), (c). Finally at step three, the ALJ must determine if the
claimant’s severe impairments meet, medically equal, or functionally equal an impairment
described in the Social Security Administration listings for minor children provided in 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 416.924(d), 416.925. Although the process for
determining whether a child’s impairments meet or medically equal a listed impairment is similar
to that used at step three in adult disability cases, in childhood disability cases, the ALJ does not
assess the child’s residual functional capacity to do work related activities. Instead, the ALJ has to
determine whether a child’s impairments functionally equal a listing by rating the degree of
limitation in six functional domains such as “caring for yourself” and “health and physical well-
being”. See 20 C.F.R. § 416.926a(b)(1). Here, Plaintiff argues that the ALJ erred in evaluating the
medical opinion evidence regarding the third step of the analysis and that therefore his finding that
her severe impairments did not meet or equal a listing was not supported by substantial evidence.
Dr. Nimmagadda and the reviewing state-agency medical consultants3 opined that J.R.E.’s
condition did not “meet or equal” a listing. R. 94-95. In a Skin Disorders Medical Source Statement
dated September 19, 2019, A. Khan, M.D., J.R.E.’s treating physician, opined that J.R.E., a four-
year old child at the time of her opinion, had limitations that might affect her ability to engage in
full-time employment. Dr. Khan did so in an opinion referring to disability criteria for adults
without addressing whether J.R.E.’s condition satisfied or exceeded the relevant listings. R. 1235–
38.4 Plaintiff argues that the ALJ improperly discounted Dr. Khan’s opinion because it applied
adult disability criteria to Plaintiff’s condition and contends that Dr. Khan’s opinion and her
treatment notes should have been interpreted as evidence that J.R.E.’s condition satisfied or
exceeded the listings.
“For claims filed before March 2017, a treating physician’s opinion on the nature and
severity of a medical condition is entitled to controlling weight if it is well-supported by medical
findings and consistent with substantial evidence in the record.” Johnson v. Berryhill, 745 F. App’x
247, 250 (7th Cir. 2018) (citing 20 C.F.R. 404.1527(c)(2); Brown v. Colvin, 845 F.3d 247, 252
(7th Cir. 2016)). The ALJ must first determine whether to give the treating physician’s opinion
“controlling weight,” by evaluating if the opinion is both well supported by medically acceptable
clinical and laboratory diagnostic techniques and not inconsistent with other evidence in the
record. 20 C.F.R. § 404.1527(c)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). “A treating
doctor's opinion generally is entitled to controlling weight if it is consistent with the record, and it
3 After reviewing J.R.E.’s then-available medical record, Victoria Dow, M.D., opined on February 16, 2017
that J.R.E.’s impairments did not meet, medically equal, or functionally equal the listings. R. 142–44. On
reconsideration, Lionel Hudspeth, Psy. D. and James Hinchen, M.D., opined on August 23 and 24, 2017
that J.R.E.’s impairments did not meet, medically equal, or functionally equal the listings. R. 153–55. In
his decision, the ALJ gave some weight to Dr. Dow’s opinion and significant weight to Dr. Hudspeth’s and
Dr. Hinchen’s opinions. R. 59. Plaintiff argues that these 2017 state agency consultant opinions were
outdated. See Moreno, 882 F.3d at 728. The Court notes that Dr. Nimmagadda provided his medical opinion
at a hearing conducted on September 25, 2019, the same month Dr. Khan provided her opinion. Dr.
Nimmagadda’s conclusion that J.R.E.’s condition did not meet or equal a listing was consistent with the
opinions of the state-agency medical consultants. See R. 144, 155.
4 The limitations stated in Dr. Khan’s Medical Source Statement were arguably so minor that they would
not have even supported a disability finding for an adult.
cannot be rejected without a ‘sound explanation.’” Hardy v. Berryhill, 908 F.3d 309, 312 (7th Cir.
2018). An ALJ may decline to give controlling weight to a treating physician’s opinions, if she
“provide[s] ‘good reasons’ for affording it less weight.” Pavlicek v. Saul, 994 F.3d 777, 781 (7th
Cir. 2021) (citing 20 C.F.R. § 404.1527(c)(2); Walker v. Berryhill, 900 F.3d 479, 485 (7th Cir.
2018)). A court should “uphold ‘all but the most patently erroneous reasons for discounting a
treating physician's assessment.’” Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015) (quoting
Luster v. Astrue, 358 Fed. Appx. 738, 740 (7th Cir. 2010)).
If the ALJ decides not to give controlling weight to a treating physician’s opinion, he must
evaluate certain checklist factors to determine the appropriate amount of weight to give the
opinion. Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009). These factors include but are not
limited to the nature and extent of the treatment relationship (including its length, and the
frequency of examinations), the opinion’s supportability, the opinion’s consistency with the
medical record as a whole, and the treating physician’s specialization. 20 C.F.R. § 404.1527(c).
While the Court “will not vacate or reverse an ALJ’s decision based solely on a failure to expressly
list every checklist factor, we do expect the ALJ to analyze the treating source’s medical opinion
‘within the multifactor framework delineated’ in the regulation.” Ray v. Saul, 861 Fed. Appx. 102,
105 (7th Cir. 2021) (internal citation omitted).
While the ALJ did not complete the two-step analysis of the treating physician rule, he
provided a “good reason” and a “sound explanation” for affording Dr. Khan’s opinion little weight.
The ALJ found Dr. Khan’s Medical Source Statement unhelpful because it answered a question
not asked. J.R.E., who was less than 14 months old at the date of disability and only four years old
at the time of decision, could not be evaluated for disability based on her capacity to work. No
child of her age is capable of substantial work activity. As a minor, J.R.E. had to be evaluated on
the six functional equivalence domains standard not the residual functional capacity standard for
assessing if adult claimants have the capacity for competitive work. See 20 C.F.R. §§ 416.924(a),
416.926a.
Since Dr. Khan did not address the applicable standard, applying the second step of the
treating physician rule to his opinion would have required the ALJ to go far beyond weighing the
checklist factors. While the ALJ found Dr. Khan’s opinion as to J.R.E.’s limitations to be
consistent with the treatment record, he appropriately did not find these work-based limitations
applicable to the minor child disability criteria. R. 60. The ALJ did, however, consider the
treatment record containing Dr. Khan’s notes. See R. 57–59. Plaintiff effectively asks the Court to
find that the ALJ first erred by failing to interpret Dr. Khan’s Medical Source Statement and
treatment notes as a medical opinion that J.R.E.’s condition met or exceeded the listing and then
erred by failing to apply the treating physician’s rule to credit that interpretation over that of the
unambiguous medical expert opinions.
In arguing that the ALJ should credit Dr. Khan’s treatment notes over the opinions of the
other medical experts,5 Plaintiff creeps dangerously close to asking the ALJ to “play doctor.”
While the ALJ could have given more weight to Dr. Khan’s opinion, as expressed in the report or
her own treatment notes, the ALJ did not err in finding her opinion unpersuasive. Additionally,
5 While Plaintiff describes Dr. Khan’s treatment notes as “lengthy”, [See 22, at p. 1], the Court notes that the record
only contains treatment notes authored by Dr. Khan for two office visits (June 28 and July 22, 2019). R. 1189–98.
Plaintiff’s briefs offer little in the way of argument as to why the ALJ would find Dr. Khan’s
treatment notes to be inconsistent with the conclusions the ALJ drew from his reliance on the other
medical experts. Plaintiff claims the ALJ “should have weighed Dr. Khan’s lengthy treatment
notes” against the other opinions in the record. [22, at p. 1]. However, the only purported treatment
notes of Dr. Kahn cited to by Plaintiff are notes of APN Noel Norup in relation to a burn clinic
visit. [See 22, at p. 2 (citing R. 1233)]. In connection with that citation, Plaintiff, for example,
argues that “Dr. Khan’s” treatment notes document “J.R.E.’s delayed development and use of her
dominant right hand” [See 22, at p. 2], but Plaintiff fails to explain how the ALJ’s decision is
inconsistent with a finding that J.R.E.’s development has been delayed and that the use of her right
hand is limited. “[T]he resolution of competing arguments based on the record is for the ALJ, not
the court.” Matthews v. Saul, 833 F. App’x 432, 437 (7th Cir. 2020) (finding that “[e]ven if the
evidence could support additional limitations . . . the record evidence did not require the ALJ to
draw this conclusion”) (quoting Donahue v. Barnhart, 279 F.3d 441, 444 (7th Cir. 2002).
Given all of this, the ALJ’s failure to note Dr. Khan’s status as a treating physician and
explicitly conduct the two-step treating physician rule in his decision was not an error, and to the
extent there was any error, it was harmless. As “the harmless error standard applies to judicial
review of administrative decisions,” a court will not remand a case to the ALJ if “convinced that
the ALJ will reach the same result.” Wilder v. Kijakazi, 22 F.4th 644, 654 (7th Cir. 2022) (quoting
Butler v. Kijakazi, 4 F.4th 498, 504 (7th Cir. 2021)). Here, for the reasons stated above, the Court
is convinced the ALJ would reach the same result.
Plaintiff further argues that the ALJ erred in relying on Dr. Nimmagadda’s medical opinion
regarding the surgical management of J.R.E.’s condition. In his decision, the ALJ gave significant
weight to Dr. Nimmagadda’s opinion testimony. Dr. Nimmagadda testified that intermittent web
contracture procedure was a minor procedure that did not meet Listing 101.08’s requirement of
continuing surgical management. R. 94–95, 97. “To meet Listing 1.08, surgical management must
be ‘directed toward the salvage or restoration of major function.’ Galvan v. Astrue, No. 10 C 4824,
2011 WL 4501424, at *16 (N.D. Ill. Sept. 28, 2011) (quoting 20 C.F.R. § 404, Subpt. P, App. 1, §
101.08). Plaintiff argues that Dr. Nimmagadda’s expert testimony is an incorrect interpretation of
101.08 and the other listings at issue, but has developed no other argument that Dr. Nimmagadda
erred in his evaluation of any other listing. Dr. Nimmagadda is a board-certified pediatrician and
allergist. R. 1114–15. While not a burn specialist, he does not need to be one in order to provide
his medical expert opinion on whether J.R.E.’s condition meets or equals a listing. Yarolem v.
Berryhill, No. 17 CV 50096, 2018 WL 4030592, at *2 (N.D. Ill. Aug. 23, 2018) (“Plaintiff has not
cited to any authority that would preclude a doctor from testifying in a Social Security
administrative hearing about medical issues outside of his specialty or practice area[, i]ndeed, the
case law is contrary.”). The ALJ committed no legal error in crediting Dr. Nimmagadda’s opinion.
In addition to her specific arguments regarding Dr. Khan and Dr. Nimmagadda’s opinions,
Plaintiff argues generally that the ALJ’s decision is not supported by substantial evidence. This
argument—to the extent that it reaches beyond her arguments regarding Dr. Khan’s or Dr.
Nimmagadda’s opinions—has been waived. Plaintiff failed to develop any other argument for how
the ALJ erred in his analysis.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for summary judgment [16] is denied and the
Commissioner’s memorandum in support of motion for summary judgment [21] is granted.
Date: 03/20/2023 ENTER:
United Stith Minch Judge