A.J.W. v. Berryhill
MEMORANDUM OPINION AND ORDER denying 13 Motion for Summary Judgment; granting 15 Motion for Summary Judgment; adopting 19 Report and Recommendation. (Written Opinion) Signed by Judge Susan Richard Nelson on 07/28/2017. (SMD)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 16-cv-2651 (SRN/LIB)
Nancy A. Berryhill,
Commissioner of Social Security
Samantha Harker Clawson, Southern Minnesota Regional Legal Services, 55 East Fifth
Street, Suite 400, St. Paul, Minnesota 55101, for Plaintiff.
Pamela Marentette, United States Attorney’s Office, 300 South Fourth Street, Suite 600,
Minneapolis, Minnesota 55415, and Michael A. Moss, Social Security Administration,
1301 Young Street, Suite A702, Dallas, Texas 75202, for Defendant.
SUSAN RICHARD NELSON, United States District Judge
This matter comes before the Court on Plaintiff’s Objections [Doc. No. 21] to
United States Magistrate Judge Leo I. Brisbois’s Report and Recommendation (“R&R”),
dated July 5, 2017 [Doc. No. 19]. The magistrate judge recommended that Plaintiff’s
Motion for Summary Judgment [Doc. No. 13] be denied, and that Defendant’s Motion for
Summary Judgment [Doc. No. 15] be granted.
Pursuant to statute, this Court reviews de novo any portion of the magistrate
judge’s opinion to which specific objections are made, and “may accept, reject, or
modify, in whole or in part, the findings or recommendations” contained in that opinion.
28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b); D. Minn. LR 72.2(b)(3). For
the reasons stated herein, the Court overrules Plaintiff’s objections and adopts the R&R
in its entirety.
The facts pertinent to this matter have been thoroughly and accurately detailed in
the R&R, and will not be repeated in full here. (See R&R at 1-34.) Stated briefly, in
May 2009, Plaintiff’s parent (“Parent”) filed an application for supplemental security
income (“SSI”) on behalf of her nine-year-old son, pursuant to Title XVI of the Social
Security Act. (See id. at 1.) 1 On December 14, 2009, Defendant found that Plaintiff was
disabled due to Borderline Intellectual Function and Attention Deficit Hyperactivity
Disorder (“ADHD”). (See id. at 1-2.) Plaintiff was found to be disabled as of May 5,
2009, and was awarded SSI benefits accordingly. (See id. at 2.)
On May 16, 2014, after a routine review of Plaintiff’s disability pursuant to 20
C.F.R. § 416.994a(a), Defendant concluded that Plaintiff had exhibited medical
improvement and was no longer disabled as of May 1, 2014.
benefits were subsequently terminated. (See id.)
Plaintiff requested reconsideration of the termination decision, and a hearing was
held on the request on July 17, 2014.
(See id.) Both Parent and Plaintiff testified at the
hearing, and a decision was issued by the Disability Hearing Officer on July 18, 2014.
Because Plaintiff does not object to the factual recitation set forth in the R&R, the Court
will cite to that document without further citation to the underlying record.
(See id.) She concluded that Plaintiff’s condition had improved since the initial decision
to award benefits in 2009 (the “Comparison Point Decision, or “CPD”), 2 and that
Plaintiff was no longer disabled.
Plaintiff again requested reconsideration, this time before an administrative law
judge (“ALJ”). ALJ Mary M. Kunz duly held an administrative hearing on November
14, 2014, where she heard testimony from Plaintiff, Parent, and Dr. Karen Butler, the
state agency medical expert. (See id.) On December 8, 2014, the ALJ issued her Hearing
Decision, in which she concluded that Plaintiff’s disability had ended as of May 1, 2014,
and he had not become disabled again since that date. (See id.)
Of particular note here, the ALJ reached her decision after following the three-step
sequential analysis for conducting a periodic review of a child’s eligibility for disability
benefits mandated by 20 C.F.R. § 416.994a(b). (See id. at 32.) The ALJ found that at the
time of the CPD, Plaintiff had medically determinable impairments of borderline
intellectual functioning and ADHD, which caused marked limitations in two of the six
domains listed in 20 C.F.R. § 416.926a(b)—“acquiring and using information,” and
“interacting and relating with others.” (See id.)
In the first step of the analysis, the ALJ concluded that the medical evidence of
record supported a finding that as of May 1, 2014, the medical severity of Plaintiff’s
impairments had decreased since the CPD. At the second step, the ALJ found that the
impairments Plaintiff had at the time of the CPD did not, as of May 1, 2014, functionally
The “Comparison Point Decision is the most recent medical determination that A.J.W.
was disabled. See 20 C.F.R. § 416.994a(a)(1).
equal the Listing of Impairments. 3 See 20 C.F.R. § 416.925.
Finally, at the third step, the ALJ considered whether Plaintiff’s current severe
impairments, which the ALJ found were Anxiety, Not Otherwise Specified (“Anxiety,
NOS”), and ADHD, met or medically equaled a Listed Impairment identified in 20
C.F.R. Part 404, Subpart P, Appendix 1. (See R&R at 33.) The ALJ concluded that they
She further found that Plaintiff’s current impairments did not
functionally equal a Listed Impairment, based on the testimony of Plaintiff, Parent, and
Dr. Butler. (See id. at 33-34.) Ultimately, because Plaintiff’s impairments had not
resulted in marked limitations in two domains of functioning, or extreme limitation in one
domain, the ALJ concluded that Plaintiff had not become disabled since May 1, 2014.
(See id. at 34.)
Following issuance of the ALJ’s Hearing Decision, Plaintiff requested review by
the Appeals Council, which was denied on June 10, 2016. On August 5, 2016, Plaintiff
filed the present action. The parties subsequently cross-moved for summary judgment,
and the Court referred the matter to the magistrate judge for a report and
recommendation. Judge Brisbois issued his R&R on July 5, 2017, recommending that
the Court deny Plaintiff’s motion and grant Defendant’s motion, and Plaintiff
subsequently timely filed objections, triggering this de novo review.
Standard of Review
Plaintiff does not challenge the ALJ’s conclusions as to either of the first two steps of
the analysis. (See R&R at 33.)
The Commissioner’s decision to deny benefits must be affirmed if it supported by
substantial evidence on the record as a whole.
See 42 U.S.C. § 405(g); Pelkey v.
Barnhart, 433 F.3d 575, 577 (8th Cir. 2006).
“Substantial evidence is less than a
preponderance, but enough that a reasonable mind might accept it as adequate to support
a decision.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citation omitted). The
substantial evidence test, however, requires “more than a mere search of the record for
evidence supporting the Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767,
770 (8th Cir. 2007) (quotation and citation omitted).
Rather, in reviewing the
administrative decision, the Court must “take into account whatever in the record fairly
detracts from its weight.” Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009) (citation
However, the Court does not substitute its own views for those of the
Commissioner, and if substantial evidence supports the Commissioner’s judgment, the
Court must affirm that decision, even if substantial evidence also supports another
conclusion. See Tellez v. Barnhart, 403 F.3d 953, 956 (8th Cir. 2005).
In his objections, Plaintiff sets forth several generalized errors that he alleges
render both the R&R and the ALJ’s Hearing Decision substantively unsound.
Specifically, Plaintiff contends that: (1) there is not substantial evidence in the record as a
whole to support a finding that his learning disability was not a medically determinable
impairment since May 1, 2014; (2) the ALJ’s failure to include his learning disability as a
medically determinable impairment and to include the resulting limitations in the
functional equivalence analysis was not harmless error; (3) there is not substantial
evidence in the record as a whole to support a finding that Plaintiff has a less than marked
limitation in the domain of “acquiring and using information;” and (4) there is not
substantial evidence in the record as a whole to support a finding that Plaintiff has a less
than marked limitation in the domain of “caring for yourself.” (See Objections at 1-2.)
Plaintiff does not, however, point to specific evidence in the record to support his
arguments, instead directing the Court to his prior memoranda presented to the magistrate
judge. (See id. at 2.)
Having carefully reviewed the record and the magistrate judge’s legal conclusions,
the Court rejects Plaintiff’s assignments of error. As to the issue of Plaintiff’s learning
disability, the magistrate judge found that although Plaintiff was correct that evidence
existed in the record sufficient to support a finding that Plaintiff’s learning disability
contributed to his behavioral and academic troubles, there was at least equal evidence in
the record to support the ALJ’s contrary conclusion. (See R&R at 37-40.) This Court
agrees. The record demonstrates that the ALJ came to a carefully reasoned decision on
the matter, and her decision was supported by substantial evidence. When the underlying
determination is thus “within the available zone of choice,” reversal is unwarranted. See
Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008) (internal quotation omitted). 4
Likewise, the Court does not agree with Plaintiff that the ALJ’s determination that
he had a less than marked limitation in the domain of “acquiring and using information”
In any event, the Court finds, as the magistrate judge did, that even if it was error for the
ALJ to not specifically identify Plaintiff’s learning disability as a severe impairment, that
error was harmless because the ALJ properly considered the effects of that learning
disability when determining whether Plaintiff’s impairments functionally equaled a
Listed Impairment. (See R&R at 40-41.)
was reversible error. As the magistrate judge observed, substantial evidence supported
the ALJ’s judgment, including the evaluations of Dr. Owen Nelsen and Dr. Margaret
Getman, the testimony of Dr. Butler, and Plaintiff’s own testimony. (See R&R at 42-43.)
Although it is true of this issue—as with the matter of Plaintiff’s learning disability—that
contrary evidence exists which might support a different conclusion, that evidence does
not so significantly outweigh the evidence in support of the ALJ’s position as to warrant
reversal. See Bradley, 528 F.3d at 1115.
Finally, Plaintiff also argues that the ALJ erred in finding that Plaintiff’s
impairments caused less than marked limitations in the “caring for yourself” domain. He
contends instead that the evidence in the record as a whole affirmatively shows marked
limitations in this domain. Once again, in light of the standard of review, the Court
cannot agree. Although Plaintiff cites to various items in the record that he suggests
support a finding that he had marked limitations in this domain, such as his school
disciplinary referrals and the March 25, 2014 Teacher Questionnaire, the entire record
amply supports the ALJ’s contrary determination. In particular, the ALJ properly took
into account Dr. Butler’s testimony that Plaintiff was able to stay out of trouble, obey
rules, avoid accidents, and ask for help when needed; special education teacher Laura
Thuente’s report that although Plaintiff had problems responding to mood changes and
handling frustration, he had no problems caring for his physical needs or taking
medications; and therapist Chong Chang’s opinion that Plaintiff understood the purpose
of his therapy and had the ability to recognize his needs. Although once again contrary
evidence existed that could have justified the ALJ in finding differently than she did, her
decision was sufficiently supportable such that it may not be disturbed here.
For the reasons set forth above, the Court agrees with the magistrate judge that the
ALJ’s decision that Plaintiff’s disability ended as of May 1, 2014, and he has not become
disabled again since that date, is legally sound and supported by substantial evidence.
Accordingly, the Court adopts the R&R in its entirety, and Plaintiff’s objections are
THEREFORE, IT IS HEREBY ORDERED THAT:
Plaintiff’s Objections to the Magistrate Judge’s July 5, 2017 Report and
Recommendation [Doc. No. 21] are OVERRULED;
The Court ADOPTS the Report and Recommendation [Doc. No. 19];
Plaintiff’s Motion for Summary Judgment [Doc. No. 13] is DENIED; and
Defendant’s Motion for Summary Judgment [Doc. NO. 15] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 28, 2017
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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