Bruce v. Berryhill

Filing 24

ORDER denying 17 Motion for Summary Judgment; granting 20 Motion for Summary Judgment. (Written Opinion) Signed by Magistrate Judge Elizabeth Cowan Wright on 7/17/2019. (KJF)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Arletha B. on behalf of L.R.C. (a minor),

Case No. 18-cv-945 (ECW)

Plaintiff,
v.

ORDER

Andrew Saul, 1
Defendant.

This matter is before the Court on Plaintiff’s Motion for Summary Judgment (Dkt.
No. 17) and Defendant’s Motion for Summary Judgment (Dkt. No. 20). Plaintiff Arletha
B. filed this case on behalf of her daughter, L.R.C. (“LRC”), seeking judicial review of a
final decision by Defendant denying her application for supplemental security income
insurance benefits. For the reasons stated below, Plaintiff’s Motion is denied, and
Defendant’s Cross-Motion is granted.
I.

BACKGROUND

Plaintiff filed a Title XVI application for supplemental security income benefits on
May 30, 2014, on behalf of LRC, alleging disability beginning March 20, 2014. (R. 12.) 2
Plaintiff claimed LRC was disabled due to asthma, delayed milestones, attention-

1

Pursuant to Federal Rule of Civil Procedure 25(d), Andrew Saul, Commissioner of
Social Security, is automatically substituted as a party in place of Nancy A. Berryhill,
former Acting Commissioner of Social Security.
2

The Social Security Administrative Record (“R.”) is available at Dkt. No. 16.

deficit/hyperactivity disorder (“ADHD”), receptive/expressive language impairment,
anemia, and hearing problems. (R. 104.) The application was denied initially (R. 101)
and on reconsideration (R. 79). Plaintiff requested a hearing, held on March 29, 2017, at
which LRC appeared but did not testify, before administrative law judge (“ALJ”)
Virginia Kuhn. (R. 12.) Plaintiff and Karen H. Butler, Ph.D., an impartial medical
expert, testified at the hearing. (R. 12.) The ALJ issued an unfavorable decision on June
7, 2017, finding that LRC was not disabled. (R. 27-28.)
The ALJ followed the three-step evaluation to determine if an individual under the
age of eighteen is disabled pursuant to 20 C.F.R. § 416.924(a). The three-step evaluation
process proceeds as follows:
The first step is to inquire whether the claimant is engaged in substantial
gainful activity. The second step is to ascertain whether the impairment or
combination of impairments is severe. The third step is to determine whether
the claimant has an impairment or impairments that meet, medically equal,
or functionally equal a listed impairment. A claimant will not be considered
disabled unless he meets the requirements for each of these three steps.
England v. Astrue, 490 F.3d 1017, 1020 (8th Cir. 2007) (cleaned up).
At step one, the ALJ determined that LRC had not engaged in substantial gainful
activity. (R. 15.) At step two, the ALJ found that LRC had the following severe
impairments: asthma; ADHD; oppositional defiant disorder (“ODD”); language disorder;
and specific learning disorder in reading, writing, and math. (R. 15.) At step three, the
ALJ concluded that LRC’s impairments do not meet, medically equal, or functionally

2

equal 3 the severity of a listed impairment. (R. 15-27.) In reaching that conclusion, the
ALJ found that LRC had: (1) a less than marked limitation in acquiring and using
information; (2) a less than marked limitation in attending and completing tasks; (3) a
less than marked limitation in interacting and relating with others; (4) a less than marked
limitation in moving about and manipulating objects; (5) a marked limitation 4 in the
ability to care for herself; and (6) no limitation in health and physical well-being. (R. 19,
20, 22, 23, 24, 26.)
Plaintiff requested a review of the decision. (R. 1.) The Appeals Council denied
Plaintiff’s request for review, which made the ALJ’s decision the final decision of the
Commissioner. (R. 1.) Plaintiff then commenced this action for judicial review.
The Court has reviewed the entire administrative record, giving particular
attention to the facts and records cited by the parties. The Court will recount the facts of
record only to the extent they are helpful for context or necessary for resolution of the
specific issues presented in the parties’ motions.

3

“Functionally equal the listings” means that the “impairment(s) must be of listinglevel severity; i.e., it must result in ‘marked’ limitations in two domains of functioning or
an ‘extreme’ limitation in one domain, as explained in this section.” 20 C.F.R. §
416.926a(a).
4

A “marked” limitation is an impairment(s) that “interferes seriously with your
ability to independently initiate, sustain, or complete activities. Your day-to-day
functioning may be seriously limited when your impairment(s) limits only one activity or
when the interactive and cumulative effects of your impairment(s) limit several activities.
‘Marked’ limitation also means a limitation that is ‘more than moderate’ but ‘less than
extreme.’ It is the equivalent of the functioning we would expect to find on standardized
testing with scores that are at least two, but less than three, standard deviations below the
mean.” 20 C.F.R. § 416.926a(e)(2).
3

II.

RECORD

LRC is a female who was born in the second half of 2009, making her four years
old when the application was filed on her behalf and seven years old at the time of the
hearing before the ALJ. (R. 12, 161.)
At a January 28, 2014 visit for insect bites—when LRC was four—it was reported
that LRC’s father was “not really taking any interest in her and so mom is watching her
all the time (they are separated).” (R. 382.) LRC’s mother’s current partner was in jail
for domestic abuse against the mother. (R. 382.) LRC and the mother moved to a new
address with no furniture and were getting an order for protection against the partner. (R.
382.)
On May 5, 2014, Mary E. Johnston, RN, CNP (“NP Johnston”) saw LRC for a
routine health maintenance visit. (R. 422.) NP Johnston noted that LRC had been
assessed for ADHD and needed to be redirected a lot and seemed to be very aggressive.
(R. 422.) NP Johnston wrote a note on LRC’s behalf to a child development program
called HeadStart, requesting that it provide services to LRC. (R. 415.) NP Johnston said
that LRC “has social issues due to her hyper behavior and she is in need of interaction
with children her age. Without HeadStart, she will be at a considerable disadvantage in
school when she starts kindergarten if she is not socializing with children now. She
unfortunately has to attend an overnight day care due to her mother’s work and so she
will be sleeping there and will not be playing with other kids.” (R. 415.)

4

On September 8, 2014, NP Johnston wrote a letter regarding LRC’s social security
claim on her behalf. (R. 474.) NP Johnston noted that LRC “has a history of physical
aggression with peers and adults in the classroom. (R. 474.) She further stated:
[LRC] pushes people to be hugged constantly, pulls on any tool the provider
is using and does not respond to direct requests to stop. She does not appear
to have good personal boundaries and does not respond to the social cues that
most 4 year olds recognize like disapproval or personal space issues.
Because of her lack of ability to comprehend what others want and to express
fully what she wants, she is frustrated. This frustration is very likely a large
part of her noted aggressive behavior at home and at school; her social
interactions are therefore not positive which reinforces her negative
behavior.
(R. 474.) NP Johnston concluded that, in her opinion, LRC qualifies for disability. (R.
474.)
On December 4, 2014, when she was five years old, LRC underwent a
psychological evaluation by Craig S. Barron, Psy.D., L.P. (R. 477-80.) Dr. Barron,
reviewing LRC’s records, noted that she had been assessed for ADHD, but instead was
given a diagnosis of Behavioral Concerns. (R. 477-78.) Dr. Barron also noted that “[a]t
school, [LRC] was seen as hyperactive, distractible, inattentive, disruptive, aggressive
and socially inappropriate.” (R. 479.) Regarding LRC’s activities of daily living, he
noted that her sleep is adequate, but she never makes her bed, needs assistance bathing
and changing her clothes and is unable to put on her shirt or pants or snap, zip, or button.
(R. 479.) Dr. Barron observed that when LRC’s mother reads to her, she will sit for
approximately 15 minutes, and that “[o]n rare occasions, [LRC] will go to Chucky
Cheese and attempts to socialize with other children, but is delayed in that area. She does
not play any games.” (R. 479.)
5

On March 19, 2015, when LRC was five, she was observed asking another child if
she needed help with her coat, asking if she could help, and helping the child. (R. 304.)
On September 2, 2015, NP Johnston saw LRC for a routine checkup. (R. 633-36.)
NP Johnston noted that LRC’s mother was thinking of taking her to counseling, which
NP Johnston encouraged her to do. (R. 636.) She also noted that LRC “has had some
behavioral problems in the past and although these are not of concern at the moment, she
could use the help as these may emerge again.” (R. 636.)
On October 26, 2015, LRC was seen by Nancy Kerian, M.A., L.M.F.T., for an
assessment of hyperactivity and aggression. (R. 613.) Kerian assessed LRC as friendly
in attitude, restless in motor activity, and having intact thought processes. (R. 615.)
Kerian assessed a moderate educational impairment, a mild social or relational
impairment, and mild impairments in mood, lack of pleasure, sleep, and labile mood,
with moderate impairments in concentration, impulse control, and anger. (R. 615-16.)
Kerian noted LRC “was very friendly with poor boundaries.” (R. 616.) She also noted
that LRC said she had been hurt by people, but her mother brought her to the doctor to
check for abuse and found nothing. (R. 616.) Kerian noted that LRC’s mother stated that
she caught LRC taking naked pictures of herself, was recently wetting herself, and was
excessively masturbating. (R. 616.) At a January 8, 2016 appointment, Kerian noted that
LRC had been to her father’s house for winter break and returned with what she said
were rug burns “from being dragged around the house.” (R. 618.) LRC reported that her
father and his girlfriend have hit her with a belt and that the girlfriend “was the one who
took pictures of [LRC’s] private part.” (R. 618.) On March 16, 2016, Kerian—at another
6

appointment—noted that LRC was currently suspended from her kindergarten school for
“spitting, hitting, yelling, refusals to do her work.” (R. 620.)
During her kindergarten school year, LRC was assessed between “sometimes” and
“consistently” in the “social” categories of “interacts well with others,” “respects rights
and property of others,” and “resolves conflict peacefully.” (R. 590.) Her teacher
commented that she “enjoys playing with her friends and always greets them with a big
smile.” (R. 590.) Her teacher also commented that LRC “enjoys Center Time learning
activities and talking with her friends [but] needs guidance in being aware of her personal
space and accepting responsibility for her actions. (R. 590.) LRC had several behavioral
reports during kindergarten in February and March 2016, including: “Telling a student he
looked like ass. Disrupting [bus] loading and route. Touching butts, trying to touch a
pre-k ‘in the nuts’. Throwing her gloves, standing on seat, yelling. Holding hands to her
crotch and pretending she had a penis.” (R. 831.)
LRC’s mother took her to see Christine Brady, Ph.D., L.P. on March 25, 2016, for
a behavioral health progress note. (R. 663-64.) Dr. Brady noted that LRC’s mother
reported “escalating behavioral problems including biting kids, jumping around on the
bus, hitting Aunt with Down Syndrome, etc.” (R. 664.) She further noted that LRC “has
been suspended from school four times this year and [the school] is threatening to expel.”
(R. 664.) Dr. Brady and LRC’s mother discussed referral options. (R. 664.)
Dr. Brady assessed LRC on April 5, 2016 and determined that “[b]ased on the
patient’s report of symptoms, she likely meets criteria for Oppositional Defiant Disorder
[(“ODD”)] and symptoms of ADHD. However, further assessment is warranted from
7

teacher perspective, therefore only ODD is being diagnosed today.” (R. 673.) Dr. Brady
also concluded that LRC’s “mental health concerns have been affecting her ability to
function and have been causing clinically significant distress. The patient is experiencing
Moderate psychosocial stress.” (R. 673.) Dr. Brady also noted that LRC, in her
kindergarten year, did not have an Individualized Education Program (“IEP”) or receive
special education classes. (R. 671.)
On April 11, 2016, LRC was seen by Nihit Gupta, M.D. (R. 685-90.) Dr. Gupta
acknowledged that LRC:
[H]as been noted to be impulsive, aggressive with significant symptoms of
hyperactivity, irritability as she is fidgety, cannot sit still, has [a] difficult
time being quiet as she talks excessively, is impulsive, impatient and
interrupts people as [they are] talking. She’s been also found to be
inappropriate as she makes sexual comments when upset with peers or staff,
both at school/daycare and home. There is also irritability which is especially
evident at home as she has been aggressive, breaking things and has required
constant supervision.
(R. 685.)
In his assessment, Dr. Gupta noted: “Psychologically, she appears to be
appropriate for her age but may have some indication of attachment issues given the
current living situation (mother works and she spends the majority of a day at school and
daycare). This could be contributing to her inappropriate behaviors include some issues
with boundaries.” (R. 689.) Dr. Gupta determined that LRC “appears to have fair social
skills but needs social skills training as she may have issues maintaining boundaries.” (R.
689.) Dr. Gupta listed ADHD and ODD in the primary diagnoses and Depression, rule
out Anxiety in the secondary diagnoses. (R. 689.) Dr. Gupta recommended starting
8

guanfacine, a treatment to target hyperactivity and impulsivity. (R. 689.) He prescribed
a 0.5 mg dose for LRC to be taken twice a day. (R. 697.)
Dr. Gupta saw LRC again on May 9, 2016 and noted that LRC was “Overall,
doing better since being started on Guanfacine but has not been able to get the medication
at school.” (R. 701.) He also noted that LRC’s “behavior has also been good at school,
especially in [the] morning.” (R. 701.) Dr. Gupta provided a doctor’s note to help with
access to guanfacine at school. (R. 712.)
On July 18, 2016, Claudia Campo, M.D., M.S. saw LRC and noted that LRC was
not experiencing side effects from the medication and that it had continued to help with
mood swings and aggression, but that LRC continued to have trouble focusing. (R. 730.)
Dr. Campo further noted that LRC’s hyperactivity varied by the circumstances, but her
history of suspensions for biting other children and aggressive behavior had since
reduced. (R. 730.)
Dr. Campo filled out a medical source statement (“MSS”) form two days later on
July 20, 2016. (R. 584-88.) Dr. Campo noted that she had first seen LRC on July 18,
2016, but LRC had been seen by other providers in her clinic since April 11, 2016. (R.
584.) Dr. Campo noted a principal diagnosis of ADHD, combined type and a secondary
diagnosis of rule-out ODD. (R. 584.) On the MSS, Dr. Campo checked “psychomotor
agitation” and “difficulty concentrating” as LRC’s signs and symptoms. (R. 584.) Dr.
Campo also reported other inattentiveness and distractibility as symptoms of her
diagnoses. (R. 585-86.) Regarding treatment, Dr. Campo listed guanfacine and noted
that LRC’s mother reported “decreased agitation and irritability with it” and no side
9

effects. (R. 585.) Dr. Campo selected marked limitations in “acquiring and using
information and/or communicating with others”; “attending and completing
tasks/maintaining concentration, persistence, and pace”; and “interacting and relating
with others.” (R. 587.) Dr. Campo selected “no limitation” for “moving about and
manipulating objects”; “caring for yourself”; and “health and physical well-being.” (R.
587.)
Dr. Campo saw LRC again on August 15, 2016 for medication management. (R.
740.) At the visit, LRC’s mother reported that “Things have been going okay.” (R. 741.)
LRC’s mother reported that LRC has still had trouble receiving medication at school or
daycare and that LRC has undergone “mood swings over the course of days, where she
appears, down and depressed and then hyperactive. [LRC’s] Mother also notes that
[LRC] engages in destructive behaviors when upset, such as recently pouring a gallon of
water over her clothes in her room, peeling the paint off the walls, and taking the closet
doors of their hinges in her room. [LRC’s] Mother states that [LRC] will also throw and
slam things.” (R. 741.) To address the medication disbursement problem, Dr. Campo
modified LRC’s prescription such that the medication be taken once daily, in the morning
at home. (See R. 742.)
In first grade, LRC had several disciplinary incidents. On October 26, 2016, she
was reported grabbing the bus driver’s arm, constantly moving around the bus, and
physically assaulting peers on the bus. (R. 598.) On October 31, 2016, LRC was
reported after she “[t]ouched another student’s bottom after student asked her to stop
[and] [l]eft time out area without permission.” (R. 597.) On November 22, 2016, LRC
10

had a violation for “hands on other students.” (R. 597.) During the fall of her first-grade
year, her teacher assessed her as “rarely” interacting with others, resolving conflict
peacefully, and respecting rights and property of others. (R. 599.)
LRC’s next primary care appointment was on December 8, 2016 with Mark Lynn,
Ph.D., L.P., when she was seen for problematic symptoms of behavioral problems and
escalating aggression. (R. 752.) Dr. Lynn developed a plan for follow-ups to track
LRC’s progress. (R. 753.)
On December 13, 2016, LRC’s mother sent a fax to her representative and the
Social Security Administration stating that LRC transferred schools on November 28,
2016 “and the school is in the process for a I.E.P. Plan for her.” (R. 287.)
On December 14, 2016, LRC underwent a diagnostic assessment from Marcia
Jensen, Ph.D., L.P. (R. 763-73.) Dr. Jensen noted that LRC had transitioned custody
from her mother to a family friend, Sheree B., who had been assigned temporary custody
on November 25, 2016 because LRC’s mother felt she could no longer manage LRC’s
behavior. (R. 763, 767.) Sheree B. “stated that [LRC] has limited social skills due to
being an only child and frequently invades [Sheree B.’s] children’s personal space.
[LRC] acknowledged physical fighting with [Sheree B.’s] older daughter.” (R. 764.)
Regarding LRC’s educational history, Dr. Jensen noted that LRC’s kindergarten teacher
noted areas of concern in the realm of social functioning and that LRC “engages in
inappropriate conversations and behaviors with peers and adults to gain attention” and
“observed that [LRC] did not respond appropriately to peers’ requests for her to stop and
would turn it into a game to follow a peer or get in their space in an effort to play.” (R.
11

768.) As of this assessment, LRC’s progress in first grade was unclear due to recent
school transition; LRC did not have an IEP or receive special education class, but LRC
was being evaluated for special education eligibility. (R. 768.) Sheree B. noted concerns
to Dr. Jensen of “trouble paying attention, irritating other children, repeating questions”
but noted that LRC was “very loving.” (R. 769.) Dr. Jensen determined that LRC “meets
the DSM-V criteria for Attention-Deficit/Hyperactivity Disorder, Combined Presentation
based on parent/caregiver and teacher reports of clinically significant symptoms of
inattention and hyperactivity/impulsivity with associated impairment.” (R. 770.) Dr.
Jensen noted that LRC likes her peers and teachers, but she frequently sought attention in
inappropriate ways. (R. 770.) In the Clinical Summary, Dr. Jenson noted “longstanding
concerns” about LRC’s “inappropriate attention seeking and failure to observe personal
boundaries,” but thought “some of her behaviors [we]re likely due to her recent
stressors.” (R. 771.) She also noted that teacher ratings did not include the clinically
significant levels of ODD and that Sheree B. said LRC would respect adult authority and
was not defiant. (R. 771.)
Sheree B. took LRC to another checkup on December 21, 2016 with Rhamy
Magid, M.D., due to behavior concerns and concerns about LRC’s medications. (R.
806.) Sheree B. told Dr. Magid that LRC had been fighting a lot with Sheree B.’s two
children. (R. 806.) Dr. Magid did not make any medication changes. (R. 809.)
LRC’s grandmother took her to a January 30, 2017 visit with Carornyr Figueroa,
M. D. (R. 842.) LRC’s grandmother took over guardianship on December 23, 2016,
from Sheree B. (R. 852.) Dr. Figueroa noted that LRC said she was “feeling well” at the
12

appointment. (R. 843.) Dr. Figueroa also noted that LRC was attending a new school
and “does not have an IEP in school.” (R. 843.) Dr. Figueroa increased the dosage of
LRC’s daily medication to address her ADHD and anxiety. (R. 844.)
On February 16, 2017, LRC’s grandmother took LRC to see Dr. Jensen. (R. 861.)
LRC reported having interpersonal conflicts with her 10-year-old aunt (her
grandmother’s daughter) who had down syndrome and is nonverbal. (R. 862.)
Specifically, LRC reported her aunt was scratching, pinching, and hitting her sometimes
and once the aunt was “eating her own feces and smearing it in various areas of [the]
house.” (R. 862.) LRC and her grandmother also reported that LRC had suffered some
abuse from her mother, which had left pinch marks on LRC’s arm from months ago. (R.
862.)
On February 21, 2017, LRC was seen by Dusty Hackler, Ph.D. (R. 871.) Dr.
Hackler reported that LRC “was a kind and thoughtful child who tried her hardest across
tasks, smiled frequently, and engaged easily with examiner.” (R. 872.) Dr. Hackler also
reported much inattentive, hyperactive, and impulsive behavior during the visit. (R. 872.)
LRC saw Dr. Figueroa on February 27, 2017 accompanied by her grandmother.
(R. 879.) LRC’s grandmother described LRC as “overly friendly” to Dr. Figueroa. (R.
880.) Dr. Figueroa reported that LRC does not have an IEP in school. (R. 880.)
On March 8, 2017, LRC saw Dr. Jensen with her grandmother. (R. 915.) LRC
“reported having a positive visit at her grandmother's home with her father and half
siblings last week and stated that she was looking forward to a visit with her mother at
her mother’s house this weekend. She indicated feeling happy to see her mother and
13

stated that her mother appears happy to see her when she arrives and through the visit.
She endorsed some anxiety around her [ten-year-old aunt], and she described strategies
she could use to help herself feel more calm and safe.” (R. 915.) LRC saw Dr. Jensen
again on March 16, 2017, and reported some issues at school, including that “some kids
in her class think she is annoying and a girl on her bus calls her stupid and ugly.” (R.
923.) LRC’s grandmother expressed concern about how LRC’s school handles her
tendency to be in other people’s personal space. (R. 923.) LRC’s grandmother stated
that LRC had been a big help with her ten-year-old aunt with disabilities. (R. 923.)
Dr. Jensen referred LRC to Dr. Heckler for a comprehensive psychological
evaluation for diagnostic clarification over concerns of possible posttraumatic stress
disorder (“PTSD”), ADHD, ODD, language disorder, and specific learning disorder. (R.
930.) Dr. Heckler based his evaluation on visits with LRC on February 21 and March 3,
2017 and on earlier medical and school records. (R. 930.) Dr. Heckler concluded that
LRC did not have sufficient symptoms for PTSD but qualifies for Other Specified
Trauma- and Stressor-Related Disorder with insufficient symptoms, but clinically
significant distress and impairment. (R. 943.) Dr. Heckler also concluded that LRC did
not have ADHD at the time because “her symptom presentation is also consistent with
that of a child who has been exposed to trauma(s).” (R. 943-44.) Dr. Heckler did not
diagnose LRC with ODD because “[g]iven mixed endorsements of oppositionality and
conduct issues across respondents, it is likely that [LRC] struggles to self-regulate in
unstructured (i.e., home) settings versus in more structured (e.g., school, testing office)
settings,” which “can also be related having a trauma history.” (R. 944.)
14

Dr. Heckler determined that LRC has a language disorder, which is “likely
affecting her ability to build age-appropriate peer relationships and communicate
effectively with adults.” (R. 943.) LRC was further diagnosed with specific learning
disorders in reading, written expression, and mathematics based on borderline to low
performance in standardized testing for these subjects. (R. 942.) Dr. Heckler noted that
LRC “has shown great resilience insofar as she is friendly towards adults and attempts to
make new peer relationships even with limited social skills (e.g., projective measures
suggest that [LRC] is aware that she may struggle to understand how to interact with
others). She has shown at least some ability to adapt to new situations, which was seen
during the current assessment, has a sunny disposition and is engaging. She also showed
the ability to reframe challenging situations into success stories even when she was not
actually successful, and showed self-confidence.” (R. 944.) Dr. Heckler stated that LRC
“should be provided with in-school supports to address her dysregulation in the
classroom, to support her ability to perform academically, and to support her ability to
form close peer relationships in a school setting.” (R. 945.)
In his evaluation, Dr. Heckler noted that LRC’s grandmother overheard LRC
telling her three-year-old half sister “to close her eyes and open her mouth, at which time
[grandmother] stated that [LRC] picked up a handful of tacks and said she was going to
put them into her sister’s mouth.” (R. 933.) Dr. Heckler also noted that LRC’s mother
reported that LRC had “engaged in destructive behaviors when upset, including pouring a
gallon of water over her clothes in her room, peeling the paint off of the walls, and taking
the closet doors of their hinges in her room, throwing things, and slamming things.” (R.
15

944.) But LRC’s teacher “endorsed conduct, aggressive, and rule-breaking behaviors all
within normal limits.” (R. 944.) Dr. Heckler noted that LRC does not have an IEP and
although her former school was evaluating her for special education eligibility, she has
not received special education. (R. 932.)
At the hearing before the ALJ on March 29, 2017, Dr. Karen Butler, Ph.D.
testified as an impartial medical expert (“ME”) with respect to the mental health aspects
of the case. (R. 50-51.) Plaintiff did not object to her testimony. (R. 51.) Dr. Butler
testified that she reviewed the relevant portions of the medical record, including LRC’s
function and disability reports, reports from Hennepin County Medical Center
(“HCMC”) between 2014 and 2017, medical education records, and a psychological
evaluation report with testing from early 2017. (R. 51; see Dkt. No. 16-1 at 2-3.) Dr.
Butler testified that based on the record, she assessed LRC’s condition as severe but it did
not meet or equal the listings. (R. 54.) Dr. Butler testified that LRC’s limitations in
“using and acquiring behavior,” “attending and completing tasks,” “interact with others,”
and “ability to move and manipulate objects” were “less than marked or moderately
impaired.” (R. 54, 55.) Dr. Butler testified that LRC’s “ability to care for herself” was
“marked.” (R. 56.) Dr. Butler testified that LRC had no limitation in “physical health
and wellbeing.” (R. 56.)
III.

LEGAL STANDARD

Judicial review of the Commissioner’s denial of benefits is limited to determining
whether substantial evidence on the record as a whole supports the decision, 42 U.S.C. §
405(g), or if the ALJ’s decision resulted from an error of law. Nash v. Comm’r, Soc. Sec.
16

Administration, 907 F.3d 1086, 1089 (8th Cir. 2018) (citing 42 U.S.C. § 405(g);
Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018)). “‘Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find it adequate to
support the Commissioner’s conclusions.’” Id. (quoting Travis v. Astrue, 477 F.3d 1037,
1040 (8th Cir. 2007)). The Court “considers evidence that detracts from the
Commissioner’s decision as well as evidence that supports it.” Id. “If substantial
evidence supports the Commissioner’s conclusions, this court does not reverse even if it
would reach a different conclusion, or merely because substantial evidence also supports
the contrary outcome.” Id. (citation omitted). In reviewing the record for substantial
evidence, the Court may not substitute its own judgment or findings of fact for that of the
ALJ. See Hilkemeyer v. Barnhart, 380 F.3d 441, 445 (8th Cir. 2004).
IV.

DISCUSSION

Plaintiff makes three principal arguments for reversal or remand: (1) the ALJ erred
in not finding that LRC had a marked limitation in “interacting and relating to others”
(Dkt. No. 18 at 13-24; Dkt. No. 23 at 5-10); (2) the ALJ failed to fully develop the record
by not getting the IEP and other records from LRC’s former school (Dkt. No. 18 at 2427; Dkt. No. 23 at 8-10); and (3) the ALJ erred in not finding LRC had an extreme
limitation in “caring for yourself” (Dkt. No. 18 at 30 n.19; Dkt. No. 23 at 2-3). The Court
addresses each in turn.

17

A.

Substantial Evidence Supports the ALJ’s Finding For “Interacting and
Relating to Others.”
The social security regulations describe the domain of “interacting and relating

with others” as “how well you initiate and sustain emotional connections with others,
develop and use the language of your community, cooperate with others, comply with
rules, respond to criticism, and respect and take care of the possessions of others.” 20
C.F.R. § 416.926a(i). Examples of limitations in the domain of “interacting and relating
with other” (not necessarily “marked” or “extreme”) include:
(i) You do not reach out to be picked up and held by your caregiver.
(ii) You have no close friends, or your friends are all older or younger than
you.
(iii) You avoid or withdraw from people you know, or you are overly anxious
or fearful of meeting new people or trying new experiences.
(iv) You have difficulty playing games or sports with rules.
(v) You have difficulty communicating with others; e.g., in using verbal and
nonverbal skills to express yourself, carrying on a conversation, or in asking
others for assistance.
(vi) You have difficulty speaking intelligibly or with adequate fluency.
20 C.F.R. § 416.926a(i)(3).
The crux of Plaintiff’s argument is that the ALJ should have found that LRC had
either a “marked” or “extreme” limitation in the domain of “interacting and relating to
others” based on (1) medical and school records (Dkt. No. 18 at 13-21), and (2) the
opinion evidence from Dr. Campo and NP Johnston (id. at 21-24). For the reasons stated
below, the Court finds that the ALJ did not err.

18

1.

The ALJ Properly Weighed the Evidence in the Record Regarding
“Interacting and Relating with Others.”

The full reasoning the ALJ gave for finding that LRC has a “less than marked
limitation in interacting and relating with others” is as follows:
During an early assessment when she [w]as 4-years old, the assessor
concluded she did not respond to social cues that most 4-years olds would
recognize and that was negatively impacting her social relationships.
Medical providers further concluded she needed social skills training because
she was a very friendly child but had poor boundaries. Indeed, she often lost
her temper and blamed others for her mistakes. Additionally, she hit, kicked,
spit at, inappropriately touched, and was aggressive towards other children.
Her teachers stated she needed many reminders and guidance about being
aware of her personal space and accepting reasonability for her actions in the
classroom. However, she did enjoy being with peers and greeted each of
them with a big smile. She also tried to interact appropriately with peers and
adults, but struggled to make friends because she sometimes did not keep her
hands to herself and needed to be a better listener/direction-follower.
(Exhibits 6F2, 15F4, 17F74, 88, 51, 18F20, 47, and 23F3)
Although the record reflects behavioral issues at school or on the bus, the
child was not on medications or in counseling as had been recommended.
(Exhibit 15F) However, in September 2015, the mother reported to the
provider that the child had behavioral problems in the past and that was not
a concern. (Exhibits l 7F, p. 15)
The evaluator who examined the claimant in March 2017 concluded she "has
shown great resilience insofar as she is friendly towards adults and attempts
to make new peer relationships even with limited skills (e.g., projective
measures suggests that [LRC] is aware that she may struggle to understand
how to interact with others). She has shown at least some ability to adapt to
new situations, which was seen during the current assessment, has a sunny
disposition and is engaging. Another more recent assessor also noted the
claimant was cooperative, engaged, and pleasant with only mild
intrusiveness when the assessor was talking to the mother during the
claimant’s assessment. (Exhibits 18F20, 23Fl2, and 15)
(R. 22.)

19

Plaintiff argues that the ALJ addressed the evidence too generally and ignored
evidence relevant to this domain. In support of this, Plaintiff provided a list of fifty
incidents in her opening brief which she contends the ALJ ignored. (Dkt. No. 18 at 1618.) First, many of the incidents do not fit best within the domain of “interacting and
relating with others” such as: (1) excessive masturbation; (2) bed wetting; (20)
nightmares/sobbing in bed; (25) feelings of worthlessness/guilt/hopelessness/statements
like “I wish I wasn’t here”; (31) witness to domestic violence; (32) experienced
emotional abuse; (33) experienced some sort of “hurt” from several people; (48) breaking
things to the point where she needs constant supervision; (49) bi[t]ing herself/very
negative about herself; and (50) snapping photos of her private parts. (Id.) Second, the
bulk of the other incidents in Plaintiff’s list were addressed by the ALJ, including that
LRC “hit, kicked, spit at, inappropriately touched, and was aggressive towards other
children,” “she needed many reminders and guidance about being aware of her personal
space and accepting reasonability for her actions in the classroom,” “the record reflects
behavioral issues at school and on the bus,” and “[s]he also tried to interact appropriately
with peers and adults, but struggled to make friends because she sometimes did not keep
her hands to herself and needed to be a better listener/direction-follower.” (R. 22.)
Plaintiff argues that had the ALJ addressed this evidence as specifically in the context of
“interacting and relating to others” as she had in the context of “caring for yourself,” the
ALJ would have found a marked impairment in “interacting and relating to others.” (Dkt.
No. 18 at 12-14.) Although the ALJ’s references to these incidents may have been more
general in the context of “interacting and relating with others,” her familiarity with the
20

underlying facts was demonstrated elsewhere in her decision, and the decision reflected
her consideration of those underlying facts in that context. 5 Third, several incidents,
including Plaintiff’s allegation that LRC had an IEP were found inconsistent with the
evidence by the ALJ, as discussed further in Part IV.B, infra. “This court will not
substitute its opinion for the ALJ’s, who is in a better position to gauge credibility and
resolve conflicts in evidence.” Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007).
Thus, the Court concludes that the ALJ did not err in addressing the relevant evidence in
the “interacting and relating with others” domain.
2.

The ALJ Properly Weighed the Opinion Evidence.

Plaintiff contends that the ALJ did not give sufficient reasons for discounting the
opinions of Dr. Campo and NP Johnston and excessively relied on the ME, Dr. Butler’s
opinion. The ALJ addressed Dr. Campo’s MSS as follows:
Claudia Campo-Soria, M.D., the claimant’s treating psychiatrist, opined, on
July 20, 2016 that neither the claimant’s impairments nor treatment will
cause her to miss school; however, she has marked limitation in acquiring
and using information, attending and completing tasks, and interacting and
relating with others but no limitations in moving about and manipulating
objects, caring for self, or health and physical well-being. According to Dr.
Campo, the claimant often avoids, dislikes, or is reluctant to engage in tasks
that require sustained mental effort, is often distracted by extraneous stimuli,
often leaves her seat in situations when remaining seated is expected, is often
“on the go” acting as if “driven by a motor”, and is intrusive in other people’s
space. Dr. Campo states these symptoms are present in school and at
daycare. (Exhibits 12Fl-5) The undersigned places little weight on Dr.
5

Similarly, the behaviors Plaintiff relies on in her reply brief (e.g., suspensions,
hitting, striking, licking, spitting, touching, yelling, biting, threatening, aggressiveness)
(Dkt. No. 23 at 5) were all referenced in the ALJ’s discussion of the “interacting and
relating with others” section. (R. 22 (e.g., “she often lost her temper . . . Additionally,
she hit, kicked, spit at, inappropriately touched, and was aggressive to other children”,
“the record reflects behavioral issues at school or on the bus”).)
21

Campo-Soria’s opinion because she made the opinion after one visit with the
child and it is inconsistent with the Hennepin County Medical Center records
and the other records across all settings that Dr. Butler reviewed.
(R. 26.) Plaintiff argues that the ALJ’s reasons for discounting Dr. Campo’s opinion fail
because (1) Dr. Campo’s opinion cannot be inconsistent with Hennepin County Medical
Center (“HCMC”) records because she is an HCMC provider, and (2) because Dr.
Campo’s colleagues at HCMC had seen LRC for several months, the one visit with Dr.
Campo is “not accurate.” (Dkt. No. 18 at 22.)
“A treating physician’s opinion is generally given controlling weight, but is not
inherently entitled to it. An ALJ may elect under certain circumstances not to give a
treating physician’s opinion controlling weight. For a treating physician’s opinion to
have controlling weight, it must be supported by medically acceptable laboratory and
diagnostic techniques and it must not be ‘inconsistent with the other substantial evidence
in [the] case record.’” Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (quoting 20
C.F.R. § 404.1527(d)(2)) (citing Goff, 421 F.3d at 790; Ellis v. Barnhart, 392 F.3d 988,
994 (8th Cir. 2005)). “A treating physician’s own inconsistency may also undermine his
opinion and diminish or eliminate the weight given his opinions.” Id. (citing Prosch v.
Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)); see also Anderson v. Astrue, 696 F.3d 790,
793 (8th Cir. 2012) (“However, ‘[a]n ALJ may discount or even disregard the opinion of
a treating physician where other medical assessments are supported by better or more
thorough medical evidence, or where a treating physician renders inconsistent opinions
that undermine the credibility of such opinions.’”) (quoting Wildman v. Astrue, 596 F.3d
959, 964 (8th Cir. 2010)) (alteration in original) (internal quotation omitted). Moreover,
22

“a treating physician’s opinion that a claimant is ‘disabled’ or ‘unable to work,’ does not
carry ‘any special significance,’ because it invades the province of the Commissioner to
make the ultimate determination of disability.” Davidson v. Astrue, 578 F.3d 838, 842
(8th Cir. 2009) (quoting 20 C.F.R. §§ 416.927(e)(1), (3)) (citation omitted).
First, there is substantial evidence supporting the ALJ’s finding that Dr. Campo’s
opinion is inconsistent with HCMC records. Even if the HCMC records were to be
considered those of Dr. Campo (even though LRC was treated by other providers), a
treating physician can render an opinion that is inconsistent with her own records, thereby
diminishing the opinion’s weight. Hacker, 459 F.3d at 937 (citation omitted). Here,
there are numerous records inconsistent with Dr. Campo’s finding regarding “interacting
and relating with others.” For example, in his assessment, Dr. Heckler stated that LRC
“has shown great resilience insofar as she is friendly towards adults and attempts to make
new peer relationships even with limited social skills” and “has a sunny disposition and is
engaging.” (R. 944.) Dr. Gupta assessed LRC as “pleasant and cooperative” with speech
“articulate appropriate” with “spontaneous elaborations.” (R. 702.) At another visit, Dr.
Gupta stated that LRC “appears to have fair social skills but needs social skills training as
she may have issues maintaining boundaries.” (R. 689.) At her one visit with Dr.
Campo, Dr. Campo assessed LRC as “Cooperative, Engaged and Pleasant” with “Mild
intrusiveness during conversation with mother.” 6 (R. 730.) Additionally, Dr. Campo’s

6

Numerous medical records between 2014 and 2017 indicated that LRC’s behavior
and demeanor was cooperative and pleasant. (E.g., R. 443-44, 467, 520, 617, 619, 663,
671, 730, 741, 752, 769, 780, 809, 853, 863, 872, 880, 890, 916, 924, 934-35.)
23

opinion is inconsistent with Dr. Butler’s opinion, which was a “less than marked or
moderately impaired” limitation. (R. 55 (noting that records said LRC “was very friendly
but had poor boundaries” and “enjoyed being with peers”).) These records are not
consistent with a marked impairment in “interacting and relating with others.”
Second, LRC was in fact only seen by Dr. Campo once before Dr. Campo formed
her opinion on July 20, 2016. (R. 584.) The only prior visit was on July 18, 2016. (R.
732.) Although Dr. Campo noted that LRC had been seen by other providers in her clinic
since April 11, 2016 (R. 584), there is no indication Dr. Campo had worked directly with
the other providers in the treatment of LRC or considered their opinions when filling out
the MSS. Indeed, the MSS does not otherwise reference any notes from the other
providers at HCMC (see generally R. 584-88), so there is little reason to attribute the care
from other providers to Dr. Campo’s opinion. For these reasons, the Court finds no error
in the ALJ’s decision to give little weight to Dr. Campo’s opinion.
The ALJ addressed NP Johnston’s opinion as follows:
Mary Johnston, RN, CNP, the claimant’s treating nurse practitioner, opined
in a letter dated September 8, 2014 that the claimant’s auditory
comprehension is weak and her expressive communication is scored below
average per evaluations done in March and July of 2014 by the Health
Dimensions. Ms. Johnston also opined the claimant has ongoing moderate
persistent asthma, which is not always well controlled and a history of
chronic ear infections. Nurse Johnston remarked the claimant does not
appear to have good personal boundaries and does not respond to the social
cures that most 4-years old recognize like disapproval or personal space
issues. Because of her lack of ability to comprehend what others want and
to express fully what she wants, she is frustrated, per Nurse Johnson, and this
frustration is very likely a large part of her noted aggressive behavior at home
and at school. In my opinion, Nurse Johnston stated the claimant qualifies
for Social Security Disability as she has significant difficulties in school and
in peer relationships. (Exhibits 6F2-3) The undersigned places little weight
24

on these generic conclusions as Nurse Johnston does not cite specific
objective evidence or tests to support her conclusions and her conclusory
statements are not supported when resolving the conflicting evidence in the
file[] as testified by Dr. Butler at the hearing.
(R. 27.) Plaintiff disagrees with the ALJ that NP Johnston’s opinion is generic and not
supported by specific objective evidence. (Dkt. No. 18 at 23 (“The above report
speaks for itself as Nurse Johnston provided a plethora of data to support her
statements.”).)
The Court finds that the ALJ’s decision to discount NP Johnston’s opinion is
supported by substantial evidence. “A physician’s statement that is ‘not supported by
diagnoses based on objective evidence’ will not support a finding of disability.” Travis v.
Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007). Here, NP Johnston’s opinion does not cite
specific objective evidence, but rather speaks generally. NP Johnston, in a September 8,
2014 letter to the Social Security Administration, stated:
Mom is tries [sic] hard to help her with all her needs but [LRC] requires
constant attention. Even in clinic, [LRC] continually attempts to draw
attention to herself and is unable to sit still or focus for long on an activity.
She pushes people to be hugged constantly, pulls on any tool the provider is
using and does not respond to direct requests to stop. She does not appear to
have good personal boundaries and does not respond to the social cues that
most 4 year olds recognize like disapproval or personal space issues.
Because of her lack of ability to comprehend what others want and to express
fully what she wants, she is frustrated. This frustration is very likely a large
part of her noted aggressive behavior at home and at school; her social
interactions are therefore not positive which reinforces her negative
behavior.
(R. 474.) NP Johnston’s opinion appears to be based on her observations of LRC
in clinic, rather than on the many other observations in the record. It is also
inconsistent with the record for the same reasons stated above that Dr. Campo’s
25

opinion is inconsistent with records, including Dr. Butler’s opinion. “This court
will not reverse merely because evidence also points to an alternate outcome.”
Travis, 477 F.3d at 1042. Moreover, NP Johnston’s opinion that LRC qualifies for
disability “does not carry ‘any special significance,’ because it invades the
province of the Commissioner to make the ultimate determination of disability.”
Davidson, 578 F.3d at 842 (citation omitted).
The Court also finds that the ALJ did not improperly weigh the opinion of Dr.
Butler, which the ALJ gave “great weight” because Dr. Butler “reviewed the longitudinal
evidence using her expertise and specialized knowledge in assessing mental impairments
and the listings within the SSA disability analysis and cited extensively to the record in
support of her testimony.” (R. 16.) Plaintiff argues this was in error because Dr. Butler
“does not specialize in the treatment of children.” (Dkt. No. 18 at 24 (citing R. 15).)
Plaintiff did not object to Dr. Butler’s testimony on these grounds (or any other grounds)
at the hearing. (R. 51.) Plaintiff’s support for this in the record merely states that Dr.
Butler specializes in “Clinical Psychology,” (R. 15), but even assuming Dr. Butler does
not specialize in the treatment of children, the ALJ’s reasons are supported. “It is well
settled that an ALJ may consider the opinion of an independent medical advisor as one
factor in determining the nature and severity of a claimant’s impairment.” Harris v.
Barnhart, 356 F.3d 926, 931 (8th Cir. 2004) (citing Freeman v. Apfel, 208 F.3d 687, 692
(8th Cir. 2000); 20 C.F.R. §§ 404.1527(f)(2)(iii), 416.927(f)(2)). The Court finds that the
ALJ properly explained the reasons for the weight assigned to the opinion of Dr. Butler.

26

B.

The ALJ Fully Developed the Record.
Plaintiff argues that the ALJ failed to fully develop the record by not obtaining

records from one of LRC’s schools, which Plaintiff contends includes an IEP. (Dkt. No.
18 at 24.) Defendant counters that LRC was only at that particular school for a brief
period of time, and she did not have an IEP, and thus the ALJ fully developed the record.
(Dkt. No. 21 at 19-21.)
“[T]he ALJ has a duty to develop the record fully, fairly, and particularly when the
claimant is not represented by counsel.” Phelan v. Bowen, 846 F.2d 478, 481 (8th Cir.
1988) (citing Driggins v. Harris, 657 F.2d 187, 188 (8th Cir. 1981) (per curiam)). Where
the claimant is represented by a lawyer, “it is of some relevance to [the court] that the
lawyer did not obtain (or, so far as we know, try to obtain) the items that are now being
complained about.” Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993). In any case,
“[a]bsent unfairness or prejudice this court will not remand for further proceedings.”
Phelan, 846 F.2d at 481.
The ALJ made an express finding that LRC does not have an IEP. (R. 17 (“School
records reveal she receives all her coursework in the mainstream classroom as she does
not receive any special education classes and she does not have an Individual Education
Plan (IEP).).) The ALJ’s finding is supported by substantial evidence. The only
evidence suggesting LRC had an IEP is her caretaker Sheree B.’s assertions that one of
her schools in December 2016 (Sheridan Elementary) was “evaluating her for special
education eligibility” (R. 768) and LRC’s mother’s testimony at the March 29, 2017
hearing that LRC’s current school was “processing [an IEP] now” and the therapist on the
27

assessment recommended that LRC have an IEP. (R. 44.) However, at the same time,
Sheree B. said that LRC “does not have an [IEP] or receive special education classes.”
(R. 768.) This latter statement—that LRC does not have an IEP or receive special
education class—is consistent with all of LRC’s records. (R. 671, 843, 880, 932.) In
particular, in Dr. Heckler’s March 2017 comprehensive evaluation, he noted that the
special education providers at LRC’s school that was evaluating her for special education
classes stated that LRC “does not have an IEP and has not received a prior
psychoeducational evaluation that she is aware of.” (R. 932.) It is clear that LRC did not
have an IEP, and to the extent the evidence could be considered conflicting, “[i]t is the
ALJ’s duty to resolve conflicts in the evidence.” Travis, 477 F.3d at 1041. Thus,
substantial evidence supports the ALJ’s finding that LRC did not have an IEP or receive
special education classes between March 20, 2014 and the March 29, 2017 hearing.
Moreover, to the extent LRC’s mother’s testimony at the March 2017 hearing
suggests the school was developing an IEP for LRC at the time of the hearing, remand
still would not be warranted because Plaintiff has failed to establish unfairness or
prejudice resulting in the ALJ’s alleged failure to develop the record to include that IEP.
See Onstad, 999 F.2d at 1234 (“In considering [the argument that the ALJ did not fully
develop the record], our inquiry is whether [the plaintiff] was prejudiced or treated
unfairly by how the ALJ did or did not develop the record; absent unfairness or prejudice,
we will not remand.”). While Plaintiff has criticized the ALJ for not affirmatively
seeking out that IEP, Plaintiff has not identified what it is in the alleged IEP that Plaintiff

28

believes renders the ALJ’s decision unfair or how its absence prejudiced LRC. 7 In the
absence of any such showing, reversal and remand for failure to develop the record is
inappropriate.
C.

Substantial Evidence Supports the ALJ’s Finding for “Caring for Yourself.”
In her opening brief, Plaintiff makes a passing argument that “the ALJ’s own

findings established . . . an extreme limitation in one domain – ‘caring for yourself.’”
(Dkt. No. 18 at 30.) Plaintiff stated this was the case because the ALJ’s two reasons why
an extreme limitation was not warranted were false: (1) LRC does not have an IEP and
(2) LRC never required special education services. (Id. at 30 n.19.) Defendant argued
that Plaintiff failed to develop this argument beyond a bare assertion and therefore
waived it. (Dkt. No. 21 at 6 n.1.) Plaintiff may have indeed waived this argument. See
Craig v. Apfel, 212 F.3d 433, 437 (8th Cir. 2000) (Plaintiff “did not articulate this
argument before the district court. The claim has thus been forfeited; accordingly, we
decline to address it.”); see also Melder v. Colvin, 546 F. App’x 605, 606 (8th Cir. 2013)
(unpublished) (undeveloped argument is deemed waived). But even if not waived, the
Court concludes that the ALJ’s finding of a “marked limitation” (rather than an “extreme
limitation”) for “caring for yourself” is supported by substantial evidence.

7

The Court notes that neither Plaintiff’s mother nor Plaintiff’s non-attorney
representative at the hearing before the ALJ (who was involved as of December 2016,
several months before the March 2017 hearing) sought permission to supplement the
record to include an IEP, even after LRC’s mother’s testimony. Further, the non-attorney
representative did not seek to supplement the record when seeking review before the
Appeals Council in June 2017 (R. 287, 311), and LRC’s counsel in this proceeding has
not sought to supplement the record with the allegedly missing IEP.
29

The domain of “caring for yourself” includes an evaluation of “how well you
maintain a healthy emotional and physical state, including how well you get your
physical and emotional wants and needs met in appropriate ways; how you cope with
stress and changes in your environment; and whether you take care of your own health,
possessions, and living area.” 20 C.F.R. § 416.926a(k). Examples (not necessarily
marked or extreme) of limitations in “caring for yourself” include:
(i) You continue to place non-nutritive or inedible objects in your mouth.
(ii) You often use self-soothing activities showing developmental regression
(e.g., thumbsucking, re-chewing food), or you have restrictive or stereotyped
mannerisms (e.g., body rocking, headbanging).
(iii) You do not dress or bathe yourself appropriately for your age because
you have an impairment(s) that affects this domain.
(iv) You engage in self-injurious behavior (e.g., suicidal thoughts or actions,
self-inflicted injury, or refusal to take your medication), or you ignore safety
rules.
(v) You do not spontaneously pursue enjoyable activities or interests.
(vi) You have disturbance in eating or sleeping patterns.
20 C.F.R. § 416.926a(k)(3).
The social security regulations define an extreme limitation as:
We will find that you have an “extreme” limitation in a domain when your
impairment(s) interferes very seriously with your ability to independently
initiate, sustain, or complete activities. Your day-to-day functioning may be
very seriously limited when your impairment(s) limits only one activity or
when the interactive and cumulative effects of your impairment(s) limit
several activities. “Extreme” limitation also means a limitation that is “more
than marked.” “Extreme” limitation is the rating we give to the worst
limitations. However, “extreme limitation” does not necessarily mean a total
lack or loss of ability to function. It is the equivalent of the functioning we
would expect to find on standardized testing with scores that are at least three
standard deviations below the mean.
20 C.F.R. § 416.926a(e)(3).

30

The ALJ noted various behavioral incidents including kindergarten and first grade
suspensions for inappropriate behavior, biting and hitting other children, engaging in
destructive behaviors when upset such as pouring water over clothing and peeling paint
off walls, but the ALJ also noted that LRC’s medication helped with aggression and
compulsion without side effects, and that her most recent assessment had ruled out
ADHD. (R. 24-25.) Moreover, as noted above, the ALJ cited the lack of an IEP or
special education services as supporting a less than extreme limitation. (R. 25.)
The ALJ properly found that LRC’s aggression and compulsion were moderated
by the prescribed medication. “If an impairment can be controlled by treatment or
medication, it cannot be considered disabling.” Hensley v. Colvin, 829 F.3d 926, 933-34
(8th Cir. 2016) (quoting Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009)). Both Dr.
Gupta and Dr. Campo 8 noted that after starting guanfacine, LRC was calmer and had
decreased agitation and irritability with it. (R. 585, 701.) It was also noted that LRC did
not have side effects from the treatment. (R. 585.) The ALJ also noted that LRC’s most
recent assessment did not diagnose her with ADHD because her symptom presentation
was consistent with exposure to trauma. (R. 943-44.) Lastly, as noted in Section IV.B
supra, the evidence supports the ALJ’s finding that LRC did not have an IEP or take
special education classes, which further supports a finding that her “caring for yourself”
domain was marked rather than extreme.

8

In her MSS, Dr. Campo listed “no limitation” for the “caring for yourself” domain.
(R. 587.)
31

V.

ORDER

Based on the files, records, and proceedings herein, IT IS ORDERED THAT:
1.

Plaintiff’s Motion for Summary Judgment (Dkt. No. 17) is DENIED;

2.

Defendant Acting Commissioner of Social Security Andrew Saul’s Motion

for Summary Judgment (Dkt. No. 20) is GRANTED; and
3.

This case is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: July 17, 2019

s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge

32