L.D.R. by WAGNER v. Berryhill

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-1763

L.D.R., a minor by his mother and

guardian, ROSHONDA R. WAGNER,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:16-CV-829 JD — Jon E. DeGuilio, Judge.

____________________

ARGUED MARCH 26, 2019 — DECIDED APRIL 15, 2019

____________________

Before BAUER, ROVNER, and BRENNAN, Circuit Judges.

BRENNAN, Circuit Judge. A mother contests the decision

that her minor son (whom we refer to as L.D.R.) did not qual-

ify for social security disability benefits until second grade.

She also seeks retroactive payments for the first year of

L.D.R.’s life, before she applied for assistance, challenging the

2 No. 18-1763

constitutionality of social security laws that bar benefits be-

fore application.

We conclude that the administrative law judge’s opinion

was properly reasoned and well supported by substantial ev-

idence. We also reject the mother’s constitutional challenge to

the social security laws and agree with the district court’s re-

view of the ALJ’s opinion. So we affirm.

I.

The Social Security Administration determined that L.D.R.

was disabled as of August 1, 2015, just before he enrolled in

second grade. Our opinion focuses on events leading up to

that date.

A.

L.D.R. has had several health problems since he was born

in March 2008. While an exhaustive tour through L.D.R.’s

medical history is not necessary to resolve this case, a sketch

of his medical history shows a child with various health con-

ditions, at times improving, at others deteriorating. He has

consistently received medical care in the fields of pediatrics,

otolaryngology (ear, nose, and throat, or “ENT”), pulmonol-

ogy, psychology, and speech pathology. We will discuss

L.D.R.’s care in each of these fields.

When L.D.R. was about 18 months old, his family physi-

cian saw signs of asthma and diagnosed him with an inflam-

matory disease of the middle ear for which ear tubes were in-

serted. Around the same time, a speech pathologist concluded

his language skills may be delayed. A clinical psychologist

also diagnosed delays in L.D.R.’s social-emotional and adap-

tive behavioral development.

No. 18-1763 3

By age three, L.D.R.’s pediatric ENT confirmed that

L.D.R.’s receptive and expressive language skills were

delayed. Ear tubes were inserted and that doctor reported im-

provements in the boy’s speech and hearing. A few months

later, L.D.R.’s pediatrician concluded that L.D.R. had met sev-

eral developmental milestones, his asthma was doing well,

and if any behavioral problems persisted he should see a psy-

chologist. At nearly age four, a clinical psychologist con-

cluded L.D.R. had met developmental milestones and that his

full-scale IQ score was in the “low-average” range.

By age four, L.D.R.’s mother reported him being hyperac-

tive and defiant. While not in therapy, he took medication for

his behavioral problems. L.D.R.’s mother also alleges her son

began to exhibit sleep disturbances, which resulted in day-

time drowsiness. A sleep study showed mildly reduced sleep

efficiency and moderate sleep apnea. L.D.R.’s tonsils and

adenoids were removed, and his snoring and sleep disor-

dered breathing improved. He remained on respiratory med-

ications, but by age five his pulmonologist found that they

were exacerbating his behavior issues.

When L.D.R. was almost five, his pediatrician concluded

L.D.R.’s health had made a “dramatic turn” downward. He

suffered from moderate asthma, sleep apnea, hearing loss

from chronic ear infections, and attention deficit hyperactive

disorder. Nine months later, the same pediatrician concluded

L.D.R. was not able to function as a normal five-year old. At

age five and one-half, in a mental status exam, L.D.R. passed

some tests, but not others. Even so, L.D.R.’s kindergarten

teacher observed his functional limitations to be neither seri-

ous nor very serious.

4 No. 18-1763

About age six, the speech pathologist concluded L.D.R.

had moderative receptive delay and low average expressive

language skills, but a good potential to reach age appropriate

language skills. L.D.R.’s pediatrician also reduced his behav-

ioral medication. By March 2015, six months before L.D.R.

was deemed disabled, another clinical psychologist diag-

nosed him with significant attention deficits and impulsive

behaviors. While L.D.R.’s communication abilities and intelli-

gence were judged “good” and he had begun kindergarten in

general education classes, he had difficulty getting along with

his peers and was later slotted to attend special education

classes. This same psychologist concluded L.D.R. was “quite

able to perform age-appropriate daily activities and behave in

an age appropriate manner when taking meds.”

By age seven, L.D.R.’s pediatrician found that his middle

ear inflammation had improved, his physical exam was nor-

mal, medications had managed his mild persistent asthma,

and his behavioral problems were stable.

B.

Specific administrative regulations control the disability

decision. A child is disabled under social security income

rules if the child has a “medically determinable physical or

mental impairment, which results in marked and severe func-

tional limitations” that “has lasted or can be expected to last

for a continuous period of not less than 12 months.” 42 U.S.C.

§ 1382c(a)(3)(C)(i).

A three-step sequential evaluation governs whether a mi-

nor is disabled according to social security regulations. Step

one asks if the minor has worked (per the regulation “sub-

stantial gainful activity”), which L.D.R. has not. 20 C.F.R.

No. 18-1763 5

§ 416.924(b). In step two, the ALJ determines whether the mi-

nor has a medically determinable impairment (or combina-

tion of impairments) that is “severe.” 20 C.F.R. § 416.924(c).

For a minor, an impairment is not severe if it is a slight abnor-

mality (or combination of slight abnormalities) that causes no

more than minimal functional limitations. 20 C.F.R.

§ 416.924(c). Absent a severe impairment, the minor is not dis-

abled.

In step three, if the impairment is severe, the ALJ deter-

mines whether the minor has an impairment (or combination

of impairments) that meets or medically equals the severity of

a “listing.” The listing in the social security regulations spec-

ify the criteria for those impairments considered presump-

tively disabling. 20 C.F.R. § 404.1525(a). A claimant may be

eligible for benefits if an impairment meets or equals an im-

pairment found in the listing of impairments. 20 C.F.R.

§ 404.1520(d); 20 C.F.R. Pt. 404 P., App. 1. The ALJ must con-

sider the combined effect of all medically determinable im-

pairments, even those not severe. 20 C.F.R. §§ 416.923,

416.924a(b)(4), and 416.926a(a) and (c). If the minor has an im-

pairment or combination of impairments that meets or medi-

cally equals the severity of the listings, and it has lasted at

least 12 months, the minor is presumed to be disabled. If not,

the minor is not disabled. 20 C.F.R. § 416.924(d).

In determining whether an impairment (or combination of

impairments) of a child functionally equals a listing, the ALJ

considers six “domains“ of functioning: (1) acquiring and us-

ing information; (2) attending to and completing tasks; (3) in-

teracting 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 Sanchez

6 No. 18-1763

v. Barnhart, 467 F.3d 1081, 1082 (quoting Keys v. Barnhart, 347

F.3d 990, 991 (7th Cir. 2003)).

C.

L.D.R.’s mother has consistently applied for social security

disability benefits throughout her son’s life. She first applied

when L.D.R. was age one. Her application, then and now, re-

quests back payments for the first year of L.D.R.’s life, even

though supplemental security income regulations preclude

benefits pre-dating the application.

In 2012, an administrative law judge denied the benefits

application for L.D.R. on the basis that his various problems

did not functionally equal a listing under the regulations.

L.D.R.’s mother appealed that decision to the district court,

which found that the ALJ had not described in specific

enough detail the weighing of certain medical evidence, so

the court vacated and remanded the case. In the meantime,

L.D.R.’s mother had filed another benefits application, which

was consolidated on remand and a new ALJ considered both

applications.

In a thorough and extensive 28-page single-spaced deci-

sion, the ALJ’s findings of fact and conclusions of law

included that L.D.R. has severe conditions resulting in more

than mild limitation in age-appropriate functioning, among

them asthma, trouble understanding language, and attention

deficit hyperactivity disorder manifesting in a behavior disor-

der. In the key portion of her opinion (App. 31–45), the ALJ

reviewed L.D.R.’s conditions under the six functional equiva-

lence domains listed above. She set out the social security

rules for different time frames of a child’s life (“older infant

or toddler (i.e. a child age 1 to … age 3)”; “a preschooler (i.e.

No. 18-1763 7

a child age 3 to … age 6)”; “a school-age child (i.e. a child age

6 to … age 12),”and made factual findings, generally and for

different time periods of L.D.R.’s life.

As to the fourth domain (moving about and manipulating

objects), the ALJ found that L.D.R. had no limitation before

August 2015. As to the other five domains, she found that

L.D.R. had various early limitations, but that their severity

was “less than marked.” She determined that L.D.R.’s condi-

tions did not functionally equal a listing and that L.D.R. did

not qualify as disabled. But, the ALJ found that since August

2015 L.D.R.’s worsening behavioral issues, and his limitations

in the third (interacting and relating with others) and fifth

(caring for one’s self) domains had become “marked.” The

ALJ ultimately concluded that L.D.R. became disabled in Au-

gust 2015 before he started second grade.

The district court affirmed the ALJ’s decision. The court

found that substantial evidence supported all the ALJ’s find-

ings and that L.D.R. had not presented any argument war-

ranting remand. L.D.R. also challenged the constitutionality

of statutes and regulations barring retroactive payments for

time before a disability application, which the district court

likewise rejected. L.D.R. appeals on both grounds.

II.

An appeal from denial of social security benefits has layers

of review. We review de novo the district court’s considera-

tion of the ALJ’s decision. Skinner v. Astrue, 478 F.3d 836, 841

(7th Cir. 2007). We will uphold an ALJ’s final decision if the

correct legal standards were applied and supported with sub-

stantial evidence. 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d

805, 811 (7th Cir. 2011). “Substantial evidence is ‘such relevant

8 No. 18-1763

evidence as a reasonable mind might accept as adequate to

support a conclusion.’ Our review is deferential; we will not

reweigh the evidence or substitute our judgment for that of

the ALJ.” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017)

(quoting Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010)). We

also do not resolve conflicts or decide questions of credibility.

Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).

Where substantial evidence supports the ALJ’s disability de-

termination, we must affirm the decision even if “reasonable

minds could differ concerning whether [the claimant] is disa-

bled.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

L.D.R.’s mother argues first that the ALJ failed to properly

analyze and make findings for all six functional equivalence

domains specific to each age gradation L.D.R. fell within. An

ALJ is to evaluate a child’s functioning as compared to other

children their age. 20 C.F.R. §§ 416.924b, 416.926a(b). But as

the district court noted, the regulations do not require the ALJ

to make separate findings within different age groups, so long

as relevant evidence from each age group is considered. The

regulations identify the age categories as examples of appro-

priate functioning at different ages. They do not require, or

even suggest, that an ALJ must articulate findings separately

for each category. 20 C.F.R. § 416.926a(g)-(k). L.D.R.’s mother

has not cited any authority (nor did we find any) in which this

court (or any other) requires each of the six domains to be as-

sessed separately for each age gradation. Instead, she argues

that such particular findings are “necessary for meaningful

district court review.”

The ALJ compared L.D.R.’s functions to typical children of

his age without impairments, see 20 CFR § 416.926a(f)(1), by

describing the typical functioning of children in each of the

No. 18-1763 9

three age categories applicable to L.D.R. for every domain.

(App. 31-44) The ALJ’s decision considered in particular de-

tail L.D.R.’s various conditions, their history, the treatments

he received, and L.D.R.’s reactions to these treatments. The

ALJ decision cites evidence during the entire time span from

the first application for benefits for L.D.R. in 2009 to his being

found disabled effective August 1, 2015. Even if the ALJ’s de-

cision did not delineate age gradations under each domain,

evidence was presented, and conflicting opinions resolved, in

each of the relevant age ranges. This was sufficient to meet

regulatory requirements.

L.D.R.’s mother also disputes the ALJ’s consideration of

the medical evidence, including how L.D.R. was treated for

middle ear inflammation, asthma, and sleep apnea. This goes

to the sixth domain of “health and physical well-being.”

L.D.R.’s mother contends the ALJ “minimized” L.D.R.’s mul-

tiple impairments and their impact on his functioning. But the

comprehensive and detailed discussion in the ALJ’s decision

of each of these impairments does not square with this asser-

tion.

The ALJ’s assessment of L.D.R.’s ear infections (including

behavior problems secondary to them) noted how L.D.R.’s

mother in 2011 had reported to an ENT physician that her

son’s speech improved after he received placement of ear

tubes, how his audiometric tests were normal, and that a later

period of inflammation had resolved. The same is true for the

ALJ’s evaluation of the evidence of L.D.R.’s asthma. The ALJ

considered all pulmonary treatment notes and records, in-

cluding school records which did not support the alleged

number of asthma-related symptoms. And the ALJ provided

the same thorough analysis of L.D.R.’s sleep apnea. No

10 No. 18-1763

evidence was presented that L.D.R.’s sleep apnea was disa-

bling; to the contrary, the ALJ discussed evidence of L.D.R.’s

sleep improvements. The ALJ’s conclusion is supported by

the results of the sleep study done on L.D.R., his improvement

after the surgery to remove the tonsils and adenoids, and the

records showing periods of time without sleep issues.

The August 1, 2015 disability date is also well supported

in the ALJ’s decision. In second grade, L.D.R.’s conditions

worsened markedly. School reports, counseling records, and

a report from L.D.R.’s second grade teacher all show that his

condition had deteriorated. Records confirm L.D.R. visited

the nurse approximately 25 times for illness and injuries (in-

cluding self-injury), and that the school social worker re-

quested an Individualized Education Plan 1 to address

L.D.R.’s behavioral and emotional problems. Also at that

time, L.D.R.’s second-grade teacher reported he had serious

to very serious problems in four functional areas.

Whether as to particular illnesses, or as to the disability

date, this appeal effectively asks us to reweigh the evidence

the ALJ considered and to come to a different decision based

on the facts. That is not our role. “Our review is deferential;

we will not reweigh the evidence or substitute our judgment

for that of the ALJ.” Summers v. Berryhill, 864 F.3d 523, 526 (7th

Cir. 2017).

III.

L.D.R.’s mother also challenges the constitutionality of the

social security statute and regulations as applied, to the extent

1

20 U.S.C. § 1414(d)(1)(A) and (d)(6) (statutory authority for IEP); 34

C.F.R. § 300.320 (definition of IEP).

No. 18-1763 11

they prohibit the retroactive award of benefits before L.D.R.’s

benefits application was filed. 2 She argues this violates the

equal protection component of the Due Process Clause of the

Fifth Amendment because it “den[ies] benefits to otherwise

eligible, i.e. poor and disabled, children for months from the

onset of disability to the application filing date.” 3 She claims

this punishes young, poor children for the tardiness of their

parents, or alternatively forces parents with potentially disa-

bled children to apply for benefits before they are even certain

such disability exists. The district court rejected this argu-

ment, and we review de novo a constitutional challenge like

this to federal statutes. See, e.g., United States v. Leach, 639 F.3d

769, 772 (7th Cir. 2011).

Rational basis scrutiny applies to equal protection dis-

crimination claims on the basis of age and wealth. See San

Antonio Ind. Sch. District v. Rodriguez, 411 U.S. 1, 54–55 (1973)

(applying rational basis scrutiny to the question of wealth dis-

crimination against children). Here, the district court identi-

fied several rational bases for not providing disability benefits

retroactively before application. For example, social security

benefits are means-tested monthly, 42 U.S.C. § 1382(c), so ret-

rospective determinations before an application is filed would

present proof difficulties and create administrative burdens.

Another rational basis is that the current rule incentivizes

prompt applications, which serves the law’s purpose of

2 The earliest a claimant can receive social security benefits is the

month after the month of application. 42 U.S.C. § 1382(c)(7); 20 C.F.R.

§ 416.335.

3The equal protection analysis in the Fifth Amendment as it applies

to the federal government is the same as that under the Fourteenth

Amendment. See Bolling v. Sharpe, 347 U.S. 497, 500 (1954).

12 No. 18-1763

helping people meet their basic food, clothing, and shelter

needs. Because the challenged statute and regulation prohib-

iting retroactive benefits pass the rational basis test, they do

not violate the constitutional guarantee of equal protection.

IV.

As L.D.R.’s counsel noted at oral argument before this

court, if the ALJ’s decision can be meaningfully reviewed,

then L.D.R. does not prevail. The ALJ’s comprehensive deci-

sion, as well as the district court’s review, provided more than

enough evidence and analysis for our court to review. After

that review, we find no error, so we AFFIRM.