Dunn v. SSA SSI Disability Apeals Council

Filing 18

MEMORANDUM AND ORDER that Plaintiff's motion for an order reversing the Commissioner's decision (Filing 14 ) is denied. Defendant's motion to strike (Filing 16 ) is granted, and all evidentiary materials filed by Plaintiff (Filing 14 at pages 2-3, 5-13, and Filing 15 ) are stricken from the record. The Commissioner's decision is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MENDORA DUNN ON BEHALF
OF M.D.B, a minor,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration
Defendant.

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8:16CV236

MEMORANDUM AND ORDER

Plaintiff claims that her daughter (“Claimant”) was entitled to Social Security
disability benefits based on asthma, eczema, allergies to peanuts, egg whites, milk,
rice, and peas, and a learning disability in math and reading. An administrative law
judge (“ALJ”) who reviewed the record in this case found the credible evidence
showed Claimant may have some limitations of function, but not to the extent of
satisfying the requirements for an award of disabled child’s benefits. Because the
ALJ’s articulated reasons in this case are in accordance with the relevant law and
evidence, the decision will be affirmed.
I. NATURE OF ACTION AND PRIOR PROCEEDINGS
On July 29, 2013, Plaintiff filed an application for supplemental security
income (SSI) on behalf of Claimant, a child under age 18 (Filing 11-5, Tr. 126). The
Social Security Administration (“SSA”) denied the claim initially on September 16,
2013 (Filing 11-3, Tr. 61; Filing 11-4, Tr. 80-83), and upon reconsideration on
November 26, 2013 (Filing 11-3, Tr. 70; Filing 11-4, Tr. 84-86, 87-90). Plaintiff then
requested a hearing before an ALJ (Filing 11-4, Tr. 91-93), which was held on January
15, 2015 (Filing 11-2, Tr. 36-60).

The ALJ issued a decision denying Claimant’s application on February 24,
2015 (Filing 11-2, Tr. 15-31). Plaintiff request for review of the ALJ’s decision
(Filing 11-2, Tr. 5) was denied by the Appeals Council on April 12, 2016. (Filing
11-2, Tr. 1-3). The ALJ’s decision thereby became the final decision of the
Commissioner. See Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008).
II. DEFENDANT’S MOTION TO STRIKE
In her brief and subsequent filing (Filing 14, 15), Plaintiff submitted additional
evidence which Defendant has moved to strike from the record (Filing 16). The
motion will be granted and the extra-record evidence will not be considered in
reviewing the ALJ’s decision.
The ALJ in this case issued her decision on February 24, 2015, which is the end
of the adjudicated period subject to judicial review (Filing 11-2, p. 12). The
extra-record documents Plaintiff submitted concern events and medication refills
occurring after the end of the adjudicated period, or which do not provide new
information that would justify supplementation of the administration record. The
documents also are not supported by an affidavit as required by NECivR 7.1(a)(2)(C).
Plaintiff submitted several pages of extra-record evidence (Filing 14, pp. 2-3,
5-13, and Filing 15). This supplemental evidence generally includes notes from the
school nurse, records of medications obtained for Plaintiff, general printouts on
Asthma and bronchitis, and a listing of Plaintiff’s patient history. Some of the
documents are undated, but the majority of documents refer to treatment or
medications obtained in 2015 or 2016. There are a few entries that occur prior to the
ALJ decision, including reports of medications provided on November 20, 2014, for
cetirizine and methotrexate (Filing 14, p. 6) and for triamcinolone on August 19, 2014
(Filing 15, p. 3), and a report of a follow up appointment with Dr. Hopp for allergies
on January 12, 2015 (Filing 14, p. 12). The remaining documents or appointments
occurred after the ALJ decision on February 24, 2015.
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When evaluating the correctness of the ALJ’s decision, the Court is not at
liberty to consider any evidence that is not included in the certified transcript for any
reason other than to determine whether the evidence would support a motion to
remand under section 205(g) of the Act, 42 U.S.C. § 405(g). See 42 U.S.C. § 405(g);
see also Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997); Delrosa v. Sullivan,
922 F.2d 480, 483 (8th Cir. 1991). Plaintiff did not submit a supported motion to
remand.
A motion to remand must show there is new evidence, which is material and
there was good cause for the failure to incorporate such evidence into the record in a
prior proceeding. 42 U.S.C. § 405(g). The evidence must be new and noncumulative.
Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002). It must be relevant and probative
in that there is a reasonable possibility it would have changed the Commissioner’s
decision had it been before her. Krogmeier v. Barnhart, 294 F.3d 1019, 1025 (8th Cir.
2002). It must also relate to the time period of which benefits were denied, and not
concern evidence of a later acquired disability or of the subsequent deterioration of
the previously non disabling condition. Estes, 275 F.3d at 725.
Plaintiff must further demonstrate good cause for not having incorporated the
new evidence into the administrative record. Hinchey v. Shalala, 29 F.3d 428, 432 33
(8th Cir. 1994) (good cause is lacking where claimant could have obtained evidence
before administrative record was closed); Pierre v. Sullivan, 884 F.2d 799, 803 (5th
Cir. 1989). Plaintiff cannot meet the “good cause” requirement simply because the
evidence was created after the ALJ’s decision. Such an argument confuses the “good
cause” requirement of 42 U.S.C. § 405(g), with the “new evidence” requirement.
Plaintiff’s extra-record evidence does not meet any of the requirements for a
remand under sentence six of 42 U.S.C. § 405(g). Moreover, the legislative history of
42 U.S.C. § 405(g) makes clear that the amended provision was enacted to limit the
discretion of federal courts to remand for consideration of new evidence. Melkonyan
v. Sullivan, 501 U.S. 89, 100-101 (1991). The mere fact evidence is of recent origin
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does not require a remand. See 42 U.S.C. § 405(g); Pierre v. Sullivan, 884 F.2d 799,
803-804 (5th Cir. 1989). The Eighth Circuit Court of Appeals has disfavored
claimants’ attempts to submit new evidence after an ALJ’s decision in an attempt for
“another bite of the apple.” Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995);
Sullins v. Shalala, 25 F.3d 601, 603 (8th Cir. 1994).
III. STATEMENT OF ISSUES
The general issues in a Social Security case are whether the final decision of the
Commissioner is consistent with the Social Security Act, regulations, and applicable
case law, and whether the findings of fact are supported by substantial evidence on the
record as a whole. The adjudicated period in this case is between July 29, 2013, the
date of Claimant’s SSI application, and February 24, 2015, the date of the ALJ’s
decision. See 20 C.F.R. § 416.335; Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir.
1989) (because SSI benefits are not payable for a period prior to application, the
relevant period begins on date of application). Because Claimant is a child under the
age of 18, she can only receive disability benefits if her condition meets, medically
equals, or functionally equals the severity of one of the listed impairments in 20
C.F.R. Pt. 404, Subpt. P, App’x 1 (i.e., “the Listings”) during the adjudicated period.
IV. STANDARD OF REVIEW
A claimant under the age of 18 shall be considered disabled for the purposes of
SSI benefits if that individual has a medically determinable physical or mental
impairment, which results in marked and severe functional limitations, and 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 12 months. See 42 U.S.C. § 1382c(a)(3)(C)(I). The
Supreme Court held the disability, and not only an impairment, has to last for a
continuous period of not less than twelve months. Barnhart v. Walton, 535 U.S. 212,
218-20 (2002). The ALJ’s decision clearly sets-forth the regulatory definitions for
determining whether a child is “disabled” within the meaning of the Act (Filing 11-2,
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Tr. 16-18). In short, Claimant’s impairments must meet or medically equal, or
functionally equal, a listed impairment. See 20 C.F.R. § 416.924; SSR 09-2p. The
requirements to functionally equal are described in 20 C.F.R. § 416.926a(a) as
“marked” limitations in two of the six domains of functioning or an “extreme”
limitation in one domain. See 20 C.F.R. §§ 416.925(b)(ii) and 416.926a(a); SSR
09-2p. The full definitions of the terms “marked” and “extreme” can be found in 20
C.F.R. § 416.926a(e), the Introduction of Social Security Ruling (“SSR”) 09-2p, and
the ALJ’s decision (Filing 11-2, Tr. 16-18).
The standard of appellate review of the Commissioner’s decision is limited to
a determination of whether the decision is supported by substantial evidence on the
record as a whole. See Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). Substantial
evidence is less than a preponderance, but enough evidence that a reasonable mind
might accept as adequate to support the Commissioner’s conclusion. See Juszczyk v.
Astrue, 542 F.3d 626, 631 (8th Cir. 2008). Evidence that both supports and detracts
from the Commissioner’s decision should be considered, and an administrative
decision is not subject to reversal simply because some evidence may support the
opposite conclusion. See Finch, 547 F.3d at 935.
A court should disturb the ALJ’s decision only if it falls outside the available
“zone of choice” and a decision is not outside that zone of choice simply because the
court may have reached a different conclusion had the court been the fact finder in the
first instance. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011); see McNamara
v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (if substantial evidence supports the
Commissioner’s decision, the court “may not reverse, even if inconsistent conclusions
may be drawn from the evidence, and even if [the court] may have reached a different
outcome”). The Eighth Circuit has repeatedly held that a court should “defer heavily
to the findings and conclusions” of the Social Security Administration. Hurd v.
Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581
(8th Cir. 2001).

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V. DISCUSSION
The ALJ evaluated Claimant’s application under the three-step sequential
evaluation process for individuals under age 18 (Filing 11-2, Tr. 16). The ALJ found
Claimant had not engaged in substantial gainful activity at step one (Filing 11-2, Tr.
18). At step two, she found Claimant’s severe impairments included asthma, eczema,
allergies to peanuts, egg whites, milk, rice, and peas, and a learning disability in math
and reading (Filing 11-2, Tr. 18). At the third step, the ALJ found Claimant did not
have an impairment that met or medically equaled an Appendix 1 Listing (Filing 11-2,
Tr. 19). The ALJ further determined Claimant did not have an impairment that
“functionally equaled” an Appendix 1 Listing because she did not have either
“marked” limitations in two domains of functioning or “extreme” limitations in one
domain of functioning (Filing 11-2, Tr. 19, 31). Thus, the ALJ determined that
Claimant was not eligible for SSI benefits as a disabled child (Filing 11-2, Tr. 31).
Substantial evidence supports these findings.
The six domains of function are: (1) Acquiring and Using Information; (2)
Attending and Completing Tasks; (3) Interacting and Relating with Others; (4)
Moving About and Manipulating Objects; (5) Caring for Yourself; and (6) Health and
Physical Well-Being. The ALJ’s decision will be analyzed below with reference to
each of these domains.
A. Acquiring and Using Information.
In the domain of “Acquiring and Using Information,” the SSA considers a
child’s ability to learn, think about, and use the information. See SSR 09-3p, Policy
Interpretation, General. While there is a wide range of normal development, most
children follow a typical course as they grow and mature. Id. As is true in many
disability cases, there is no doubt Claimant experiences limitations due to her
conditions; however, the real issue is the extent of those limitations. Thomas v.
Sullivan, 928 F.2d 255, 259 (8th Cir. 1991). Again, a “marked limitation” means the
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child’s impairment “interferes seriously” with the ability to independently initiate,
sustain, or complete activities (Filing 11-2, Tr. 17); 20 C.F.R. § 416.926a(e)(2).
The ALJ found Claimant’s impairment did not “interfere seriously” with her
acquiring and using information. See 20 C.F.R. § 416.926a(e)(2). The ALJ in the
present case noted Claimant’s acquiring and using information abilities during the
adjudicated period (July 29, 2013 through February 24, 2015) were shown in the
questionnaire Claimant’s mother completed on August 23, 2013, where she admitted
Claimant had no problems communicating or learning, but only had some physical
limitations (Filing 11-2, Tr. 25; Filing 11-6, Tr. 139-146). Plaintiff further noted in her
answers to prehearing interrogatories completed on September 6, 2014, that Claimant
enjoys making pictures and bracelets with beads (Filing 11-2, Tr. 25; Filing 11-6, Tr.
201-205). The record shows Claimant functioned adequately in kindergarten and first
grade, but began to exhibit difficulty with reading and math in the second grade
(Filing 11-2, Tr. 26; Filing 11-6, Tr. 209-218, 230). At that time, the school
established an Individualized Education Plan (“IEP”) to provide resource instruction
five hours a week in these areas (Filing 11-2, Tr. 26; Filing 11-6, Tr. 232). The
teachers indicate in kindergarten and first grade that Claimant made steady progress
academically, but needed practice with reading skills and was working below grade
level in all areas (Filing 11-2, Tr. 26; Filing 11-6, Tr. 209-218, 230). The school
psychologist indicated in the IEP that Claimant’s basic reading skills and math
reasoning skills were below average (Filing 11-2, Tr. 26; Filing 11-6, 231-232). The
current school year report card indicates Claimant was not failing any subjects,
although she continued below reading level (Filing 11-2, Tr. 26, Filing 11-6, Tr. 237).
Claimant testified she now does well in school with resources to help her with math
and reading (Filing 11-2, Tr. 20, 41-42).
The foregoing demonstrates Claimant did not have marked limitations in the
domain of acquiring and using information. The ALJ correctly pointed out Claimant
has some limitations, but not Listing-level limitations (Filing 11-2, Tr. 25). Thomas,
928 F.2d at 259. The ALJ’s resolution of the evidence in finding Claimant’s
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impairment did not “interfere seriously” with her acquiring and using information
ability will be affirmed.
B. Attending and Completing Tasks.
In the domain of “Attending and Completing Tasks,” the SSA considers a
child’s ability to focus and maintain attention, and to begin, carry through, and finish
activities or tasks. See SSR 09-4p, Policy Interpretation, General. The SSA considers
the child’s ability to initiate and maintain attention, including the child’s alertness and
ability to focus on an activity or task despite distractions, and to perform tasks at an
appropriate pace. Id. The SSA also considers the child’s ability to change focus after
completing a task and to avoid impulsive thinking and acting. Id. Finally, the SSA
evaluates a child’s ability to organize, plan ahead, prioritize competing tasks, and
manage time. Id. The limitations in the domain of “Attending and Completing Tasks”
are most often seen in children with mental disorders. Id.
The ALJ found Claimant’s impairment did not “interfere seriously” with her
attending and completing tasks. See 20 C.F.R. § 416.926a(e)(2). The ALJ noted the
fact Plaintiff reported in the questionnaire completed on August 23, 2013, that
Claimant had no problems paying attention and sticking to a task (Filing 11-2, Tr. 26;
Filing 11-6, Tr. 139-146). She also noted in the answers to prehearing interrogatories
that Claimant enjoys putting beads together for bracelets and she is responsible for
cleaning her own room, but often Plaintiff has to complete this task (Filing 11-2, Tr.
26; Filing 11-6, Tr. 201-205). A kindergarten teacher commented in May 2012 (before
the adjudicated period) that Claimant had a short attention span and required constant
reminders to stay focused (Filing 11-2, Tr. 27; Filing 11-6, Tr. 218). However, the
school psychologist advised during the adjudicated period in January 2014 that, upon
her observation of Claimant in the classroom, she was attentive and participated in the
discussion (Filing 11-2, Tr. 27; Filing 11-6, Tr. 230). The current school year report
card shows satisfactory performance in initiative, cooperation, responsibility, work
habits, self-control, and problem solving (Filing 11-2, Tr. 27; Filing 11-6, Tr. 238).
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Claimant testified that the tasks she completed at home include washing dishes,
making her bed, putting away her clothes, and doing homework (Filing 11-2, Tr. 20,
43-44).
The foregoing demonstrates Claimant did not have marked limitations in the
domain of attending and completing tasks. The ALJ correctly pointed out the
existence of some limitations, but not Listing-level limitations (Filing 11-2, Tr.
26-27). Thomas, 928 F.2d at 259. The ALJ’s resolution of the evidence in finding
Claimant’s impairment did not “interfere seriously” with her attending and completing
tasks will be affirmed.
C. Interacting and Relating with Others.
In the domain of “Interacting and Relating with Others,” the SSA considers a
child’s ability to initiate and respond to exchanges with other people, and to form and
sustain relationships with family members, friends, and others. See SSR 09-5p, Policy
Interpretation, General. This domain includes all aspects of social interaction with
individuals and groups at home, at school, and in the community. Id. Important
aspects of both interacting and relating are the child’s response to persons in authority,
compliance with rules, and regard for the possessions of others. Id.
The ALJ found Claimant’s impairment did not “interfere seriously” with her
interacting and relating with others. See 20 C.F.R. § 416.926a(e)(2). The ALJ noted
Claimant is described throughout the record as cooperative and pleasant (Filing 11-2,
Tr. 27; Filing 11-6, Tr. 218). Claimant testified at the hearing that she gets along with
her friends and her brother (Filing 11-2, Tr. 27, 43-44). Claimant said she had quite
a few friends she played with at home and school (Filing 11-2, Tr. 20, 44). When she
injured her knee, she was noted to be singing and laughing with the nurse in the
emergency room (Filing 11-2, Tr. 27; Filing 11-7, Tr. 276). The school psychologist
observed in January 2014 that Claimant was generally well behaved and tried hard in
the classroom and on testing (Filing 11-2, Tr. 27; Filing 11-6, Tr. 230).
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The foregoing demonstrates Claimant did not have marked limitations in the
domain of interacting and relating with others. The ALJ correctly pointed out the
existence of some limitations, but not Listing-level limitations (Filing 11-2, Tr. 27).
Thomas, 928 F.2d at 259. The ALJ’s resolution of the evidence in finding Claimant’s
impairment did not “interfere seriously” with her interacting and relating with others
will be affirmed.
D. Moving About and Manipulating Objects.
In the domain of “Moving About and Manipulating Objects,” the SSA considers
a child’s physical ability to move one’s body from one place to another, and to move
and manipulate things. These activities may require gross or fine motor skills, or a
combination of both. See SSR 09-6p, Policy Interpretation, General.
The ALJ found Claimant’s impairment did not “interfere seriously” with her
moving about and manipulating objects. See 20 C.F.R. § 416.926a(e)(2). The ALJ
noted it was reasonable that Claimant’s skin condition and reported asthma might
affect her ability to move about and manipulate objects (Filing 11-2, Tr. 28).
However, Claimant testified at the hearing that she enjoys playing basketball, jumping
rope, and playing volleyball at school, and at no time has needed an inhaler or
breathing treatment (Filing 11-2, Tr. 20, 28, 44-45). Claimant’s chores at home
include washing dishes, making her bed, putting away her clothes, and doing
homework (Filing 11-2, Tr. 20, 43-44). Claimant’s mother advised in her answers to
prehearing interrogatories that Claimant enjoys art things such as making pictures and
stringing beads for bracelets, which obviously requires good, fine manipulation
(Filing 11-2, Tr. 28; Filing 11-6, Tr. 201-205).
The foregoing demonstrates Claimant did not have marked limitations in the
domain of moving about and manipulating objects. The ALJ correctly pointed out the
existence of some limitations, but not Listing-level limitations (Filing 11-2, Tr. 28).
Thomas, 928 F.2d at 259. The ALJ’s resolution of the evidence in finding Claimant’s
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impairment did not “interfere seriously” with her moving about and manipulating
objects will be affirmed.
E. Caring for Yourself.
In the domain of “Caring for Yourself,” the SSA considers a child’s ability to
maintain a healthy emotional and physical state, including how well the child gets her
emotional and physical wants and needs met in appropriate ways, how the child copes
with stress and changes in the environment, and how well the child takes care of their
own health, possessions, and living area. See SSR 09-7p, Policy Interpretation,
General.
The ALJ found Claimant’s impairment did not “interfere seriously” with her
caring for herself. See 20 C.F.R. § 416.926a(e)(2). The ALJ noted there was no
evidence in the record of Claimant exhibiting difficulty in taking care of herself
(Filing 11-2, Tr. 29). Claimant’s mother indicated that Claimant’s grooming was very
good (Filing 11-2, Tr. 29; Filing 11-6, Tr. 203). Claimant testified at the hearing that
she dresses herself for school and rides the bus (Filing 11-2, Tr. 20, 42). Her chores
include washing dishes, making her bed, putting away her clothes, and doing her own
homework (Filing 11-2, Tr. 20, 43-44). Claimant’s mother simply reported Claimant
periodically complains that all clothes make her itchy, which is associated with her
eczema (Filing 11-2, Tr. 29, 52).
The foregoing demonstrates Claimant did not have marked limitations in the
domain of caring for yourself. The ALJ correctly pointed out the existence of some
limitations, but not Listing-level limitations (Filing 11-2, Tr. 29). Thomas, 928 F.2d
at 259. The ALJ’s resolution of the evidence in finding Claimant’s impairment did not
“interfere seriously” with her caring for herself will be affirmed.

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F. Health and Physical Well-Being.
In the domain of “Health and Physical Well-Being,” the SSA considers the
cumulative physical effects of physical and mental impairments and their associated
treatments on the child’s health and functioning. Unlike the other five domains of
functional equivalence (which address a child’s abilities), this domain does not
address typical development and functioning. Rather, the “Health and Physical
Well-Being” domain addresses how such things as recurrent illness, the side effects
of medication, and the need for ongoing treatment affect a child’s body; that is, the
child’s health and sense of physical well-being. See SSR 09-8p, Policy Interpretation,
General.
The ALJ found Claimant’s impairment did not “interfere seriously” with her
health and physical well-being. See 20 C.F.R. § 416.926a(e)(2). The ALJ noted
Claimant’s most severe problem, eczema, is managed with a regimen of medications
and creams at home, but there is no indication this is required at school (Filing 11-2,
Tr. 30). The only recommendation Russell Hopp, D.O., had for the school is to use an
EpiPen if Claimant has an adverse reaction to any foods that had been positive on
testing, including milk, egg whites, peanuts, rice, and peas (Filing 11-2, Tr. 30; Filing
11-8, Tr. 367).1 There is no report that this has been necessary, and Claimant admitted
Dr. Hopp remarked on March 4, 2013, that Claimant “looks spectacular today
compared to last time” (Filing 11-2, Tr. 22; Filing 11-7, Tr. 264, 327). At the March
11, 2013 follow-up, Dr. Hopp observed that chronic eczema was not as severe as it
had been four weeks earlier and was fairly stable (Filing 11-2, Tr. 22; Filing 11-7, Tr.
262, 325). On April 29, 2013, Dr. Hopp said Claimant’s skin “looks marvelous
compared to her previous skin issues” (Filing 11-2, Tr. 22; Filing 11-7, Tr. 261). On
July 1, 2013, Dr. Hopp noted Claimant had made remarkable improvement and she
needed to go swimming twice a week or do a bleach bath once a week to help her skin
(Filing 11-2, Tr. 22; Filing 11-7, Tr. 259, 323).
1

Review of the July 31, 2013 office visit with Dr. Hopp (two days after the start
of the adjudicated period in this case) shows Claimant was doing pretty well and was
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she could eat most foods at lunch (Filing 11-2, Tr. 20, 30, 46). Claimant said she has
not needed to use an inhaler or breathing treatment (Filing 11-2, Tr. 30, 45), but her
mother indicated she takes a breathing treatment each morning that lasts 24 hours and
controls her symptoms (Filing 11-2, Tr. 30, 49). Claimant reported she does have skin
problems, however, she uses special creams “once in a while,” and her skin condition
is improving (Filing 11-2, Tr. 20, 45).
The foregoing demonstrates Claimant did not have marked limitations in the
domain of health and physical well-being. The ALJ correctly pointed out the existence
of some limitations, but not Listing-level limitations (Filing 11-2, Tr. 30). Thomas,
928 F.2d at 259. The ALJ’s resolution of the evidence in finding Claimant’s
impairment did not “interfere seriously” with her health and physical well-being will
be affirmed.

“about as stable as she has been since I started seeing her” (Filing 11-2, Tr. 22; Filing
11-7, 258, 322). She was bathing every day and swimming twice a week for her skin
treatment regimen and she did not have asthma or food allergies “per se” (Filing 11-2,
Tr. 22; Filing 11-7, Tr. 258, 322). Dr. Hopp noted Claimant was still avoiding milk,
peanuts, most eggs, and tomatoes, and her eczema was “super stable and not infected”
on her current treatment regimen (Filing 11-2, Tr. 23; Filing 11-7, Tr. 316-317). On
June 18, 2014, he said Claimant’s skin “looks fabulous” (Filing 11-2, Tr. 23; Filing
11-7, Tr. 314). Dr. Hopp said Claimant’s skin was the best it had ever been and
physical exam was negative with the exception of allergic rhinitis in the nose (Filing
11-2, Tr. 23; Filing 11-7, Tr. 314).
When seen on July 30, 2014, Dr. Hopp noted that Claimant was back for her
pre-school visit and that her skin looked stable, although not perfectly normal (Filing
11-2, Tr. 23; Filing 11-7, Tr. 313). He opined she did not have asthma, but she was
having to avoid certain foods because of an allergic reaction that might require the use
of an EpiPen in an emergency situation; however, Claimant testified at the hearing
that she usually eats everything at school except peanuts and tomato sauce (Filing
11-2, Tr. 23, 46; Filing 11-7, Tr. 313).
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VI. Conclusion
For the reasons explained above, I find the ALJ’s decision is supported by
substantial evidence on the record as a whole and is not contrary to law.
Accordingly,
IT IS ORDERED:
1.

Plaintiff’s motion for an order reversing the Commissioner’s decision
(Filing 14) is denied.

2.

Defendant’s motion to strike (Filing 16) is granted, and all evidentiary
materials filed by Plaintiff (Filing 14 at pages 2-3, 5-13, and Filing 15)
are stricken from the record.

3.

The Commissioner’s decision is affirmed pursuant to sentence four of
42 U.S.C. § 405(g).

4.

Judgment will be entered by separate document.

DATED this 18th day of January, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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