BEAVERS v. BISIGNANO

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

NEW ALBANY DIVISION

APRIL B,1 )

)

Plaintiff, )

)

v. ) No. 4:24-cv-00094-KMB-SEB

)

FRANK BISIGNANO,2 )

)

Defendant. )

ENTRY REVIEWING THE COMMISSIONER'S DECISION

On May 16, 2017, Plaintiff April B. applied for disability benefits and supplemental

security income from the Social Security Administration ("SSA") on behalf of B.C.,3 alleging an

onset date of December 29, 2016. [Dkt. 11-8 at 13.] This case has taken a circuitous path

involving multiple appeals, and most recently Administrative Law Judge Thuy-Anh T. Nguyen

(the "ALJ") issued a decision on June 26, 2023, concluding that B.C. was not disabled and not

entitled to receive the requested benefits. [Dkt. 11-8 at 9.] April requested review through written

exceptions and ultimately filed a Complaint in this Court for review on July 8, 2024. [Dkt. 1.]

The Parties have jointly consented, and this matter was referred to the undersigned to conduct all

1 To protect the privacy interests of claimants for Social Security benefits, and consistent with the

recommendation of the Court Administration and Case Management Committee of the

Administrative Office of the United States Courts, the Southern District of Indiana has opted to

use only the first names and last initials of non-governmental parties in its Social Security judicial

review opinion.

2 Frank Bisignano became the Commissioner of Social Security on May 6, 2025. Pursuant to Rule

25(d) of the Federal Rules of Civil Procedure, Frank Bisignano should be substituted as the

defendant in this suit. No further action need be taken to continue this suit by reason of the last

sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

3 In accordance with Federal Rule of Civil Procedure 5.2(a), the Court uses the initials of the

claimant because claimant is a minor.

proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed. R.

Civ. P. 73.

Of note, April filed an additional disability claim in December 2020, alleging an onset date

of December 18, 2020. That claim was granted on the basis that B.C. met Listing 111.07 relating

to cerebral palsy at that time. [Dkt. 11-8 at 13.] Despite the subsequent award of benefits, this

case remains pending to address whether B.C. is also entitled to benefits from December 29, 2016

(the alleged onset date in the underlying claim), until December 18, 2020 (the date B.C. was

awarded benefits).

I. STANDARD OF REVIEW

"The Social Security Administration (SSA) provides benefits to individuals who cannot

obtain work because of a physical or mental disability." Biestek v. Berryhill, 587 U.S. 97, 98 (2019).

While "[s]ocial security disability benefits are designed for disabled workers . . . low-income

parents or guardians may obtain them on behalf of disabled children as well." Keys v. Barnhart,

347 F.3d 990, 991 (7th Cir. 2003). Disability is the inability "to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous period of

not less than twelve months." Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018) (citing 42

U.S.C. § 423(d)(1)(A)).

When an applicant appeals an adverse benefits decision, this Court's role is limited to

ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for

the ALJ's decision. Stephens, 888 F.3d at 327. "[S]ubstantial evidence" is "evidence that 'a

reasonable mind might accept as adequate to support a conclusion.'" Zoch v. Saul, 981 F.3d 597,

601 (7th Cir. 2020) (quoting Biestek, 139 S. Ct. at 1154). "Although this Court reviews the record

as a whole, it cannot substitute its own judgment for that of the SSA by reevaluating the facts, or

reweighing the evidence to decide whether a claimant is in fact disabled." Stephens, 888 F.3d

at 327. Reviewing courts also "do not decide questions of credibility, deferring instead to the

ALJ's conclusions unless 'patently wrong.'" Zoch, 981 F.3d at 601 (quoting Summers v. Berryhill,

864 F.3d 523, 528 (7th Cir. 2017)). "[E]ven under deferential standard of review for social

security disability cases, an [ALJ] must provide a logical bridge between the evidence and [the]

conclusions." Jarnutowski v. Kijakazi, 48 F.4th 769, 773 (7th Cir. 2022) (internal quotations

omitted).

The SSA applies a sequential three-step test for determining whether a child claimant is

disabled. 20 C.F.R. § 416.924. Under this test, the ALJ must evaluate the following in sequence:

(1) whether the claimant is engaged in substantial gainful activity; (2) if not,

whether the claimant has a severe impairment; and (3) if so, whether the impairment

meets, equals or functionally equals an impairment listed in SSA regulations as

being presumptively disabling.

Baker v. Barnhart, 410 F. Supp. 2d 757, 760 (E.D. Wis. 2005); see also L.D.R. v. Berryhill, 920

F.3d 1146, 1150 (7th Cir. 2019). If a child meets or equals a listing, then the child is entitled to

benefits "without any further inquiry." Keys, 347 F.3d at 992. However, if no listing is met, the

ALJ must determine whether the claimant’s impairment or combination of impairments

functionally equals a listing in one of the six domains of functioning:

(1) acquiring and using information; (2) attending to and completing tasks; (3)

interacting with and relating to other people; (4) moving about and manipulating

objects; (5) caring for oneself; and (6) health and physical well-being.

20 C.F.R. § 416.926a(b)(1); see also L.D.R., 920 F.3d at 1150-51. The "domains of functioning"

replace the vocational analysis adults undergo with a functional analysis that "inquir[es] into the

impact of an impairment on the normal daily activities of a child of the claimant’s age." Sullivan

v. Zebley, 493 U.S. 521, 539-40 (1990). A child is disabled when the ALJ determines they have a

"marked" limitation in at least two domains or an "extreme" limitation in at least one domain. 20

C.F.R. § 416.926a(a). The ALJ must consider the combined effect of all medically determinable

impairments, not just impairments found to be "severe" at Step Two. Mosley v. Kijakazi, 2022

WL 4535203, at *11 (N.D. Ill. 2022). The regulations define a "marked" limitation as one that

interferes "seriously" with the child’s ability to independently initiate, sustain, or complete

activities. 20 C.F.R. § 416.926a(e)(3)(i). An "extreme" limitation is one that interferes "very

seriously" with the child’s ability to independently initiate, sustain or complete activities. 20

C.F.R. § 416.926a(e)(2)(i). The regulations also provide a corresponding quantitative definition

for both "marked" and "extreme" limitations:

"Marked" and "extreme" limitations in a given domain can be established by

standardized test scores that are two or three standard deviations, respectively,

below the mean—that is, either in the lowest 2.5 percent of the distribution or the

lowest one-half of 1 percent—provided, however, that the scores are representative

of day-to-day functioning. 20 C.F.R. §§ 416.926a(e)(2)(iii), 416.926a(e)(3)(iii).

Test scores are not conclusive[.]

Keys, 347 F.3d at 994.

If the ALJ committed no legal error and substantial evidence exists to support the ALJ's

decision, the Court must affirm the denial of benefits. Stephens, 888 F.3d at 327. "An ALJ's

findings are supported by substantial evidence if the ALJ identifies supporting evidence in the

record and builds a logical bridge from that evidence to the conclusion." Giles v. Astrue, 483 F.3d

483, 486 (7th Cir. 2007). But if the decision "lacks evidentiary support or is so poorly articulated

as to prevent meaningful review," remand is required. Steele v. Barnhart, 290 F.3d 936, 940 (7th

Cir. 2002). Additionally, when constructing the logical bridge, the ALJ must be careful not to

"play the role of doctor and interpret medical evidence when he or she is not qualified to do so."

Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007).

When an ALJ's decision does not apply the correct legal standard, remand for further

proceedings is usually the appropriate remedy. Karr v. Saul, 989 F.3d 508, 513 (7th Cir. 2021).

Typically, remand is also appropriate when the decision is not supported by substantial evidence.

Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). Arguments that are

"perfunctory and underdeveloped" by a party are waived. Hall v. Berryhill, 906 F.3d 640, 644

(7th Cir. 2018) (internal quotations omitted).

II. BACKGROUND4

B.C. was five months old when April B., the Plaintiff, applied for disability benefits

on B.C.'s behalf. [Dkt. 11-2 at 47.] On October 3, 2019, the ALJ held a hearing. [Dkt. 11-2

at 65-74.] The ALJ denied the claim on December 6, 2019, [dkt. 11-2 at 53], and on August

27, 2020, the Appeals Council denied April’s request for review, [dkt. 11-2 at 2-7]. April

appealed, [dkt. 11-9 at 26-30], and the District Court remanded the case back to the ALJ, [dkt.

11-9 at 37-38]. The ALJ held another hearing in May 2023, [dkt. 11-8 at 32-42], and again

denied benefits on June 26, 2023, [dkt. 11-8 at 9-22]. April again appealed the agency's

unfavorable decision, and that appeal is the subject of this review.

The ALJ followed the three-step sequential evaluation set forth by SSA in 20 C.F.R. §

416.924(a) and concluded that B.C. was not disabled for the period at issue. [Dkt. 11-8 at 9-

22.] Specifically, the ALJ found as follows:

• At Step One, B.C. has not engaged in substantial gainful activity since May 16, 2017, the

alleged onset date. [Dkt. 11-8 at 14.]

• At Step Two, B.C. has the following severe impairments: cerebral palsy of the left side,

motor delay, adrenal insufficiency, reactive airway disease, asthma, obesity, and speech

and language delay. [Dkt. 11-8 at 14.]

4 The relevant evidence of record is set forth in the Parties' briefs and need not be repeated here.

Specific facts relevant to the disposition of this case are discussed below as necessary.

• At Step Three, prior to December 18, 2020, B.C. does not have an impairment of combination

of impairments that meets or medically equals the severity of one of the listed impairments.

[Dkt. 11-8 at 14.]

• Also at Step Three, prior to December 18, 2020, B.C. does not have an impairment or

combination of impairments that functionally equal the severity of the listings. [Dkt. 11-

8 at 15.] Specifically, the ALJ found that B.C. had "less than a marked limitation" in all

six specific domains of functioning. [Dkt. 11-8 at 16.]

III. DISCUSSION

April raises three issues for the Court's review: (1) whether the ALJ improperly evaluated

B.C.'s limitations at the functional analysis in Step Three; (2) whether the ALJ's failure to obtain

a medical expert was error; and (3) whether the ALJ failed to properly consider Listing 111.07

(Cerebral Palsy), under which the claimant was later awarded disability benefits. [Dkt. 13 at 9.]

The Commissioner filed a brief in response supporting the ALJ's conclusions, emphasizing

that just because "a child claimant is found disabled under the Social Security Act does not mean

that the child was disabled before that point." [Dkt. 15.] The Commissioner contends that the ALJ

carefully weighed the evidence pertaining to the relevant period and properly found that the

evidence showed that B.C's severe impairments neither met nor medically equaled any section of

the Listing. [Id.] The Commissioner also addresses the remaining arguments raised by April and

asks the Court to affirm the decision denying B.C. benefits.

April failed to file a reply brief and the time to do so has long since passed. To some extent,

the Court construes the failure to file a reply brief as an acknowledgement of the correctness of

the Commissioner's arguments. See East v. Astrue, 2010 WL 1751720, at *1 (S.D. Ind. 2010)

(interpreting the claimant's "failure to file a reply brief as an acknowledgment of the correctness

of the Commissioner's" arguments); Midwest Generation EME, LLC v. Continuum Chem. Corp.,

768 F. Supp. 2d 939, 950 (N.D. Ill. 2010) (finding that "failure to respond to an opposing party's

argument implies concession"); Law v. Medco Rsch. Inc., 113 F.3d 781, 787 (7th Cir. 1997)

(explaining that "[f]ailure to contest a point is not necessarily a waiver, but it is a risky tactic, and

sometimes fatal"); Milam v. Dominick's Finer Foods, Inc., 567 F.3d 830, 832 (7th Cir. 2009)

(interpreting "plaintiffs' silence in their response as acknowledgment"). The Court will, however,

address each of the issues raised by April in turn.

A. April's has not shown reversible error regarding the ALJ’s evaluation of B.C.’s

limitations at Step Three.

April argues that the ALJ overlooked evidence in the record that clearly established

functional equivalence to a Listing. April points to the Ages & Stages Questionaries completed

as a part of Dr. Wang’s autism evaluation for B.C., which found that B.C. had below cutoff scores

in several areas including Communication and Personal Social. [Dkt. 17-8 at 112.] Additionally,

April cites a visit with Dr. Lakhotia on April 9, 2019, where Dr. Lakhotia observed that B.C. was

experiencing "mild receptive language delay and severe expressive language delay" and only had

"4 words and two signs." [Dkt. 17-8 at 122.]

The Commissioner argues that substantial evidence supports the ALJ’s finding that B.C.’s

limitations in the six functional domains were less than marked. [Dkt. 15 at 2.] The

Commissioner details evidence on which the ALJ relied and emphasizes that courts rightfully

give deference to an ALJ's findings when they are supported by substantial evidence. [Id. at 2-

4.] To the extent that April argues that the ALJ failed to properly evaluated B.C.'s limitations in

each of the six functional limitations, the Commissioner contends that she does not raise a specific

argument with respect to any domain and this vague argument should be considered waived. [Id.

at 4-5.]

If substantial evidence supports the ALJ’s decision, the court must allow the decision to

stand, even if reasonable minds would differ on the outcome. Elder v. Astrue, 529 F.3d 408, 413

(7th Cir. 2008). While an ALJ may not "ignore a line of evidence supporting a finding of

disability" and must "build a logical bridge from that evidence to [the] conclusion," the ALJ does

not have to mention every piece of evidence in the record. Chrisman v. Bisignano, 137 F.4th

618, 624 (7th Cir. 2025) (internal quotations omitted).

In this case, April fails to convincingly identify how the ALJ's decision is not supported

by substantial evidence. While the ALJ did not quote Dr. Lakhotia's notes as April's brief does,

the ALJ does cite to this visit and mentioned Dr. Lakhotia's ultimate recommendation of speech

therapy for B.C. [Dkt. 11-8 at 18.] The ALJ found that B.C. had a language delay at Step Two

and incorporated several record citations that pointed to B.C.'s limited range of words and

expressive and receptive language delays. [Dkt. 11-8 at 18.] After reviewing the record, the

Court concludes that the ALJ did consider B.C.'s language delay, especially more than the "most

minimal of articulation requirements" that ALJs are required to use. Warnell v. O'Malley, 97 4th

469, 471 (7th Cir. 2024).

April is correct that the ALJ does not mention the Ages & Stages Questionnaire ("ASQ");

however, the ALJ did consider other comparable standardized tests and the ALJ need not consider

every piece of evidence in the record. For example, the ALJ cites to B.C.'s First Steps Evaluation,

which found a standard deviation of -2 in B.C.'s Social and Social Communication scores. [Dkt.

11-7 at 573.] These findings were more recent than the ASQ and found similar results. [Compare

dkt. 11-7 at 473 (the ASQ results) with dkt. 11-7 at 573 (the First Steps Evaluation)]; see also

Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir. 2018) (concluding that an ALJ should not rely

on an outdated assessment when newer evidence is available). Additionally, standardized test

scores are not conclusive, meaning that the ALJ should weigh the results of a standardized test

alongside other evidence. See Flener, 361 F.3d at 449; Keys, 347 F.3d at 994. After reviewing

the record, the Court concludes that the ALJ's decision was supported by substantial evidence

and her failure to specifically reference the ASQ is not reversible error, given that she referenced

a more recent and comparable assessment. The Court also agrees with the Commissioner that to

the extent April's argument does not allege which domain or domains of functioning the ALJ

should have found for B.C. to have a marked or extreme limitation in, April's argument has been

waived. For all these reasons, the Court concludes that April has not shown reversible error on

this issue.

B. The ALJ was not required to obtain an updated medical expert's opinion to

determine functional equivalency and did not improperly interpret any medical

data.

April alleges that the ALJ created an evidentiary deficit when she found no medical opinion

to be controlling or persuasive. Without a persuasive medical opinion, April argues, the ALJ was

left to interpret the medical evidence on her own, which is not permissible for an ALJ to do. [Dkt.

13 at 13-14.]

In response, the Commissioner emphasizes that the ALJ alone makes the determination of

a child's functional abilities. The Commissioner also argues that evidentiary deficits are only

created when no medical evidence exists or insufficient medical evidence is relied upon when

determining the child's functional capacity. [Dkt. 15 at 7.]

When an ALJ rejects all opinions by medical professionals, that may create an evidentiary

gap, especially if the evidence in the record conflicts with the recommended RFC or the functional

analysis for a child. Suide v. Astrue, 371 F. App’x 684, 690 (7th Cir. 2010); see also Benito M. v.

Kijakazi, 2022 WL 2828741 at *3 (N.D. Ill. 2022) (holding that Suide never created a bright line

rule that rejection of all medical opinions required remand). An evidentiary gap can also be created

if the ALJ crosses the line from evaluating medical opinions, which is required by the regulations,

into forming medical opinions, which the ALJ is not allowed to do. Dale v. Saul, 2019 WL

4072117 at *3 (N.D. Ind. 2019). Most commonly, an ALJ crosses this line by making inferences

from facts in the record not substantiated by a medical expert. Van Dusen v. Kijakazi, 2021 WL

3549615, at *4 (N.D. Ind. 2021). Making this mistake invites the ALJ's individual bias into

decisions that should be informed by medical evidence alone. Blakes ex rel. Wolfe v. Barnhart,

331 F.3d 565, 569-70 (7th Cir. 2003) ("an ALJ may not rely on a hunch"); see also Rohan v. Chater,

98 F.3d 966, 970 (7th Cir. 1996) (holding that the ALJ played doctor by inferring that the claimant’s

job as a small business owner was incompatible with a diagnosis of major depression). While the

ALJ must rely on medical evidence when determining functional equivalency, there is no

requirement that the ALJ must request an updated medical opinion. Cora T. v. Berryhill, 2019 WL

1206129, at *4 (Ind. S.D. 2019). Ultimately, the ALJ has "substantial discretion" to make the

functional equivalency determination after weighing the evidence in the record. Keys, 347 F.3d at

994.

Here, the ALJ did not find any medical opinion to be persuasive. This by itself, however,

does not create an evidentiary gap. April fails to "identify medical evidence that was incorrectly

interpreted by the ALJ which should have been reviewed by an expert." Cora T., 2019 WL

1206129, at *4. Although April takes issue with certain credibility determinations made by the

ALJ, including her own and those of B.C.’s teachers and school, April does not explain how the

ALJ's "partially credible" rating was improper or how a different credibility rating would change

the outcome. Failing to further develop this argument also results in waiver. Hall, 906 F.3d at

644.

Additionally, the ALJ did rely on percentile data and the observable, everyday behaviors

of B.C. to reach her conclusion. [See, e.g., dkt. 11-8 at 18.] "[G]eneral observations of daily

behavior and restrictions that might result from a medical condition" is not medical evidence and

so does not require the interpretation of a medical expert. Murphy, 496 F.3d at 634. Additionally,

percentile data is not raw medical data since the data has already been placed into the context of a

child's peers and does not require a medical professional to further interpret the data. See 20 C.F.R.

§ 416.926a(e)(1)(ii) (test scores with standard deviations will be considered "together with the

information we have about your functioning" by the ALJ). After reviewing the record, the Court

concludes that the ALJ in this case did not make her own interpretation of B.C.'s medical records

and instead permissibly relied on data that placed B.C. in the context of his peers. As such, April

has not shown reversible error.

C. The ALJ properly considered Listing 111.07, and a diagnosis alone does not confer

a finding of disability.

April asserts that it is illogical that B.C. could have been diagnosed with cerebral palsy

during the initial disability period but not awarded disability benefits for that time, especially given

that B.C. was later found to have a disability from Listing 111.07 (Cerebral Palsy). [Dkt. 13 at 14-

15.]

The Commissioner responds that a disability finding is based on the medical evidence

involving the severity of an impairment, not the condition or diagnosis of the claimant. The

Commissioner also points out that the ALJ did consider Listing 111.07 in her opinion and found

that the requirements were not met at that time. [Dkt. 15 at 7-8.]

The Court agrees with the Commissioner on this issue. While B.C. was later found to have

a disability based on the Listing for cerebral palsy, this does not immediately confer a finding of

prior disability. See McGillem v. Kijakazi, 2022 WL 385175, at *4 (7th Cir. 2022) ("the need for

restrictions cannot be inferred from the diagnosis alone"). For the disability period in question

here, the ALJ did consider Listing 111.07 in accordance with B.C.'s severe impairment of cerebral

palsy and found that the listing requirements were not met at that time. April does not develop

any argument regarding how the ALJ erred in this analysis, and her belief that such a finding is

illogical in and of itself is not enough. Since the ALJ considered the proper listing in conjunction

with evidence from the appropriate period, after analyzing the record, the Court concludes that

April has not shown reversible error on this issue.

IV. CONCLUSION

The standard for disability claims under the Social Security Act is stringent. Plessinger v.

Berryhill, 900 F.3d 909, 911 (7th Cir. 2018). "The Act does not contemplate degrees of disability

or allow for an award based on partial disability.". Williams-Overstreet v. Astrue, 364 F. App'x 271,

274 (7th Cir. 2010) (citing Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir. 1985)). After analyzing

April's arguments, the Court can find no legal basis presented by her to reverse the ALJ's decision

that B.C. was not disabled during the relevant period. Therefore, the ALJ's decision 1s

AFFIRMED. Final judgment shall issue accordingly.

SO ORDERED.

Date: 8/7/2025 Bobbie Pann

Kellie M. Barr

United States Magistrate Judge

Southern District of Indiana

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