Millen v. Astrue
Filing
16
ORDER Denying Plaintiff's Request to Supplement the Record and ORDER Affirming Decision of Commissioner. Signed by Judge Jon Phipps McCalla on 5/18/2016. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KELLY MILLEN, on behalf of
minor child K.B.M.,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Defendant.
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No. 2:13-cv-02148-JPM-cgc
ORDER DENYING PLAINTIFF’S REQUEST TO SUPPLEMENT THE RECORD
AND
ORDER AFFIRMING DECISION OF COMMISSIONER
Plaintiff Kelly Millen brought this action on behalf of his
minor daughter, K.B.M. (“Claimant”), for judicial review of
Defendant Michael J. Astrue’s (“the Commissioner”) final
decision denying K.B.M.’s application for supplemental security
income (“SSI”) benefits based on disability under Title XVI of
the Social Security Act (“the Act”).
Before the Court is also Plaintiff’s request to supplement
the record, filed July 17, 2013.
(ECF No. 12.)
On July 25,
2013, Defendant responded in opposition to Plaintiff’s request.
(ECF No. 14.)
For the reasons set forth below, Plaintiff’s request to
supplement the record is DENIED and the decision of the
Commissioner is AFFIRMED.
I.
BACKGROUND
A.
Factual Background
K.B.M. was born on October 10, 2001, and at the time of her
hearing before the ALJ on June 14, 2011, she was nine years old.
(R. 28, 32, 129.)
K.B.M. attended Cordova Elementary School
through at least third grade, after which her father began
homeschooling her.
(R. 43-44, 527, 532.)
At Cordova
Elementary, K.B.M. received special accommodations pursuant to
Section 504 of the Rehabilitation Act of 1973.
(See R. 187-98.)
She was diagnosed with attention deficit hyperactivity disorder
(“ADHD”) in February 2009.
B.
(R. 332-33.)
Procedural Background
On March 10, 2010, Millen filed an application for SSI on
behalf of Claimant, alleging a disability onset date of March 1,
2008.
(See R. 11.)
Millen alleged that Claimant was disabled
based on her ADHD, bipolar disorder, impulse control disorder,
and oppositional defiant disorder.
(See R. 154-55.)
Plaintiff’s application was denied initially and upon
reconsideration by the Social Security Administration.
48, 53, 61.)
(R. 47,
Plaintiff then requested a hearing before an
administrative law judge (“ALJ”) (R. 62), which was held on June
14, 2011 (R. 28).
2
On November 17, 2011, the ALJ issued a decision, finding
that Plaintiff was not entitled to benefits.
(R. 11-23.)
Specifically, the ALJ made the following findings of fact:
1. The claimant was born on October 10, 2001.
Therefore, she was a preschooler on March 10, 2010,
the date [the] application was filed, and is currently
a school-age child (20 CFR 416.926a(g)(2)).
2. The claimant has not engaged in substantial gainful
activity since March 10, 2010, the application date
(20 CFR 416.924(b) and 416.971 et seq.).
3. The claimant has the following severe impairments:
attention deficit hyperactivity disorder and learning
disorder (20 CFR 416.924(c)).
. . . .
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925
and 416.926).
. . . .
5. The claimant does not have an impairment or
combination of impairments that functionally equals
the listings (20 CFR 416.924(d) and 416.926a).
. . . .
6. The claimant has not been disabled, as defined in
the Social Security Act, since March 10, 2010, the
date the application was filed (20 CFR 416.924(a)).
(R. 14-22.)
In determining functional equivalence, the ALJ evaluated
Claimant’s abilities under all six domains of functioning and
made the following findings:
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1. The claimant has less than marked limitation in
acquiring and using information.
. . . .
2. The claimant has marked limitation in attending and
completing tasks.
. . . .
3. The claimant has less than marked limitation in
interacting and relating with others.
. . . .
4. The claimant has no limitation in moving about and
manipulating objects.
. . . .
5. The claimant has no limitation in the ability to
care for herself.
. . . .
6. The claimant has
physical well-being.
no
limitation
in
health
and
(R. 17-22.)
On December 5, 2011, Plaintiff timely filed a request for
review of the hearing decision.
(R. 7.)
On December 21, 2012,
the Appeals Council affirmed the ALJ’s decision, thereby making
the ALJ’s decision the final decision of the Commissioner.
(R.
2-6.)
On March 8, 2013, Plaintiff filed the instant action,
requesting reversal of the decision of the Commissioner or a
remand.
(See Compl. at PageID 2-3, ECF No. 1.)
4
Defendant filed
an Answer, as well as the administrative record, on May 14,
2013.
(ECF No. 8.)
On June 7, 2013, Plaintiff filed a memorandum in opposition
to the Commissioner’s decision.
(ECF No. 10.)
Defendant filed
a memorandum in support of the Commissioner’s decision on July
8, 2013.
(ECF No. 11.)
On July 17, 2013, Plaintiff sent a letter to the Court,
requesting to supplement the record in light of the Social
Security’s approval of her February 2013 claim for SSI benefits.
(ECF No. 12.)
Defendant responded in opposition to this request
on July 25, 2013.
II.
(ECF No. 14.)
LEGAL STANDARD
Pursuant to 42 U.S.C. § 405(g), a claimant may obtain
judicial review of any final decision made by the Commissioner
after a hearing to which he was a party.
42 U.S.C. § 405(g).
“The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.”
Id.
A district court’s review is limited to the record made in
the administrative hearing process.
Jones v. Sec’y, Health &
Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991).
The purpose
of this review is to determine whether or not there is
substantial evidence to support the Commissioner’s decision, 42
5
U.S.C. § 405(g), and whether the correct legal standards were
applied.
See Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854
(6th Cir. 2010); Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601,
604-05 (6th Cir. 2009).
Substantial evidence is defined as “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007).
“‘Substantial evidence’ is more than a mere scintilla of
evidence, but less than a preponderance.”
Bell v. Comm’r of
Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (quoting Consol.
Edison, 305 U.S. at 229).
The Commissioner, not the district court, is charged with
the duty to weigh the evidence, to make credibility
determinations and resolve material conflicts in the testimony,
and to decide the case accordingly.
F.3d 506, 509 (6th Cir. 2007).
See Bass v. McMahon, 499
When substantial evidence
supports the Commissioner’s determination, it is conclusive,
even if substantial evidence also supports the opposite
conclusion.
See Foster v. Halter, 279 F.3d 348, 353 (6th Cir.
2001); Mullen v. Bowen, 800 F.2d 535, 545-46 (6th Cir. 1986) (en
banc).
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III. ANALYSIS
A.
Administrative Determination
The standard for evaluating a child’s disability claim
differs from that used for an adult.
§ 1382c(a)(3)(C).
42 U.S.C.
To determine whether a child is disabled
within the meaning of the Act, the Commissioner conducts the
following three-step evaluation:
(1) whether the child is working; (2) whether the
child has a medically determinable severe impairment
which is expected to result in death, has lasted or is
expected to last for a continuous period of not less
than 12 months and, if so, (3) whether the impairment
or combination of impairments meets, medically equals,
or functionally equals the severity of any impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1
(2000).
Miller ex rel. Devine v. Comm’r of Soc. Sec., 37 F. App’x 146,
148 (6th Cir. 2002) (citing 20 C.F.R. § 416.924 (2000)).
An
impairment is considered to “functionally equal” a listed
impairment “if the child has an extreme limitation in one area
of functioning, or a marked limitation in two areas of
functioning.”
Id. (citing 20 C.F.R. § 416.926a(b)(2)); 20
C.F.R. § 416.926a(a).
The domains addressed when considering
functional equivalency are: “(1) [a]cquiring and using
information; (2) [a]ttending and completing tasks; (3)
[i]nteracting and relating with others; (4) [m]oving about and
manipulating objects; (5) [c]aring for [one]self; and (6)
[h]ealth and physical well-being.”
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20 C.F.R. § 416.926a(b)(1).
In the instant case, the ALJ found that Claimant’s
impairment did not meet, medically equal, or functionally equal
any listed impairment.
B.
Review of ALJ Decision
Plaintiff generally objects to the ALJ’s conclusions.
(See ECF No. 10.)
Plaintiff also requests that the Court
consider supplemental material, namely the Social Security
Administration’s finding that Claimant was disabled as of
February 2013.
(ECF No. 12.)
Defendant argues that substantial
evidence supports the Commissioner’s findings.
4-11.)
(ECF No. 11 at
Defendant further argues that Plaintiff’s request to
supplement the record is not appropriate pursuant to 42 U.S.C. §
405(g).
(ECF No. 14.)
The Court first considers whether the supplemental material
should be considered.
The Court then considers whether the ALJ
erred by (1) failing to find that Claimant’s impairment meets or
medically equals a listed impairment; or (2) failing to find
that Claimant’s impairment functionally equals a listed
impairment.
1.
Motion to Supplement
As an initial matter, the Court’s review is limited to the
administrative record.
Thus, the Court considers the new
evidence submitted by Plaintiff only to determine whether it
provides a basis for remand under 42 U.S.C. § 405(g).
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Under 42 U.S.C. § 405(g), a reviewing court “may at any
time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the
record in a prior proceeding.”
42 U.S.C. § 405(g); see also
Willis v. Sec’y of Health & Human Servs., 727 F.2d 551, 553 (6th
Cir. 1984).
“[T]he party seeking remand bears the burden of
showing that remand is proper under Section 405.”
Oliver v.
Sec’y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir.
1986).
The additional evidence submitted by Claimant is not
material to the Commissioner’s decision that Claimant was not
disabled as of November 17, 2011.
The new evidence reveals that
the Social Security Administration determined that Claimant
qualified as disabled as of February 2013, but it does not
reveal further information about Claimant’s medical condition in
November 2011.
Accord Sizemore v. Sec’y of Health & Human
Servs., 865 F.2d 709, 712 (6th Cir. 1988) (per curiam)
(“Evidence which reflected the applicant’s aggravated or
deteriorated condition is not relevant because such evidence
does not demonstrate the point in time that the disability
itself began.
Reviewing courts have declined to remand
disability claims for reevaluation in light of medical evidence
9
of a deteriorated condition.”).
Accordingly, Plaintiff fails to
demonstrate that this new evidence necessitates remand.
Plaintiff’s request to supplement the record is DENIED.
2.
ALJ’s Finding that Claimant Did Not Meet or
Medically Equal a Listed Impairment
The ALJ determined that Claimant did not meet or medically
equal Listing 112.11, the listing for ADHD that applies to
individuals under the age of eighteen.
(See R. 14.)
To meet
Listing 112.11, a child must have medically documented findings
of marked inattention, marked impulsiveness, and marked
hyperactivity, resulting in marked impairment in at least two of
the following: (1) age-appropriate cognitive/communicative
function, (2) age-appropriate social functioning, (3) ageappropriate personal functioning, or (4) maintaining
concentration, persistence, or pace.
20 C.F.R. Part 404,
Subpart P, Appendix 1 §§ 112.02(B)(2), 112.11.
A claimant’s
impairment “medically equals” a listed impairment if it is “at
least equal in severity and duration to the criteria of any
listed impairment.”
Reynolds v. Comm’r of Soc. Sec., 424 F.
App’x 411, 414 (6th Cir. 2011) (quoting 20 C.F.R. § 416.926(a);
20 C.F.R. § 404.1526(a)).
The ALJ reasoned that “while the
claimant has been assessed with ADHD, she does not meet this
Listing as the medical records do not reveal that her condition
10
results in marked restriction in any of the areas referenced
above.”
(R. 14.)
Substantial evidence in the record supports the ALJ’s
conclusion.
Specifically, the records from Memphis Neurology,
consultative examiner Russell Beebe, Ph.D., and non-examining
psychologists William Meneese, Ph.D., and George Davis, Ph.D.,
reflect that Claimant’s ADHD was effectively treated by
medication and that she had only mild-to-moderate limitations in
the above-stated areas of functioning.
(R. 289, 316-18, 330,
353-57, 358-63.)
For example, on March 3, 2009, Family Nurse Practitioner
Laura Porch of Memphis Neurology observed that Claimant was
“[d]oing much better on the Adderall.”
(R. 330.)
On May 12,
2010, Porch observed that Claimant was “doing well and . . .
tolerating medication, but . . . having issues with mood
swings.”
her mood.”
(R. 338.)
(R. 339.)
Porch, therefore, “add[ed] Risperdal for
Porch “add[ed] Lamictal as a mood
stabilizer” in April 2011.
(R. 447.)
On May 5, 2010, Dr. Beebe observed that although Claimant
“showed a short attention span,” “[s]he was able to engage in
some back and forth conversation and follow a train of thought
at a level near expectations for her age.”
(R. 313.)
He opined
that “[h]er overall day-to-day functioning appears to be
moderately impaired by ADHD.”
(R. 318.)
11
On May 27, 2010, Dr.
Meneese determined that Claimant had “moderate learning[] [and]
attention limits,” as well as “mild interaction limits.”
353, 357.)
(R.
On July 24, 2010, Dr. Davis agreed with Dr.
Meneese’s conclusions.
(R. 358-63.)
The Appeals Council also considered medical records from UT
Medical Group Division of Child and Adolescent Psychiatry, dated
August 11, 2011, through June 7, 2012.
(See R. 6.) 1
In the
initial assessment (R. 535-45), which took place on August 11,
2011, shortly after K.B.M.’s hearing before the ALJ, the
interviewer noted that Claimant was “[a]lert,” “[c]ooperative,”
and “attentive.” (R. 542-43.)
The interviewer also described
Claimant’s mood as “good,” her thought process as “[n]ormal,”
and her concentration and attention as “[a]ppear[ing] normal.”
(R. 543-44.)
Although Claimant was having
“behavioral/disciplinary problems at home,” the interviewer
noted that she was “[c]urrently doing well in school on
Focalin.”
(R. 544.)
This evidence is consistent with the other
relevant medical evidence and reflects that, at the time of the
ALJ’s review, while Claimant had ADHD, the disorder did not
result in marked impairment in any of the requisite categories
of functioning.
1
The Appeals Council indicates that the medical records from the UT
Medical Group are dated August 18, 2011 to June 7, 2012. (R. 6.) This
appears to be a clerical error, as the medical records reflect that an
initial assessment took place on August 11, 2011. (See R. 535.)
12
Accordingly, the Court finds that substantial evidence
supports the ALJ’s finding that Claimant did not meet or
medically equal a listed impairment.
3.
ALJ’s Finding that Claimant Did Not Functionally
Equal a Listed Impairment
As discussed above, a child’s impairment functionally
equals a listed impairment if the child has an extreme
limitation in one area of functioning or marked limitations in
two areas of functioning.
The ALJ determined that Claimant had
a marked limitation in attending and completing tasks.
(R. 18.)
In all other areas of functioning, the ALJ found no or less than
marked limitation.
(R. 16-17, 19-22.)
In making this
determination, the ALJ considered Claimant’s educational
records, a teacher questionnaire submitted by Claimant’s secondgrade teacher, a note from Claimant’s third-grade teacher, the
statements of Claimant’s parents, the Memphis Neurology records,
Dr. Beebe’s report, and the evaluations of Drs. Meneese and
Davis.
(R. 14-17, 20.)
a.
Acquiring and Using Information
The ALJ found that Claimant “has less than marked
limitation in acquiring and using information,” considering her
educational records and the questionnaire submitted by her
second-grade teacher.
(R. 17.)
The Social Security regulations
provide that a child between the ages of six and twelve “should
13
be able to learn to read, write, and do math, and discuss
history and science.”
20 C.F.R. § 416.926a(g)(2)(iv).
These
skills are relevant in both academic situations and “daily
living situations at home and in the community.”
Id.
The child
should also “be able to use increasingly complex language . . .
to share information and ideas with individuals or groups, by
asking questions and expressing [his or her] own ideas, and by
understanding and responding to the opinions of others.”
Id.
As the ALJ correctly states, Claimant’s educational records
reveal “reasonably good performance.”
(R. 17.)
The
questionnaire completed by Claimant’s second-grade teacher
indicated that Claimant’s reading skills were at a 2.3 to 3.3
grade level, her math skills were at a second-grade level, and
her written language skills were at a 1.9 grade level.
113.)
(R.
The teacher noted that Claimant “comprehends when she is
attentive,” but has a short attention span.
(R. 114.)
In third grade, Claimant earned a final grade of “B” or “C”
in all of the academic subjects, which included reading,
spelling, composition, grammar, mathematics, science, and social
studies.
(R. 454.)
Claimant earned a final grade of
“excellent” in five out of the six “special subjects,” which
included health, handwriting, computer literacy, Spanish,
physical education, and music.
(Id.)
14
Accordingly, substantial evidence supports the ALJ’s
conclusion that Claimant has less than marked impairment in
acquiring and using information.
b.
Attending and Completing Tasks
The ALJ found that Claimant “has marked limitation in
attending and completing tasks.”
(R. 18.)
The Social Security
regulations provide that a child between the ages of six and
twelve “should be able to focus [his or her] attention in a
variety of situations in order to follow directions, remember
and organize [his or her] school materials, and complete
classroom and homework assignments.”
§ 416.926a(h)(2)(iv).
20 C.F.R.
The child “should be able to concentrate
on details and not make careless mistakes in [his or her work]
(beyond what would be expected in other children [of the same
age] who do not have impairments).”
Id.
The child should be
able to stay on task when appropriate and to complete “a
transition task” without additional reminders.
Id.
Although both Dr. Meneese and Dr. Davis found that Claimant
had less than marked limitation in attending and completing
tasks (R. 354, 360), the ALJ found that the record reflected
greater limitations in this area (R. 18).
The ALJ specifically
referred to the questionnaire submitted by Claimant’s secondgrade teacher, which indicated that Claimant has “[a] very
serious problem” carrying out multi-step instructions,
15
completing class and homework assignments, and completing work
accurately without careless mistakes.
(R. 115.)
These
observations are consistent with those of Dr. Beebe in his
consultative report.
(R. 311-18.)
Dr. Beebe noted that
Claimant had “a short attention span” and that Claimant’s
“mother describes behaviors and problems typical of ADHD
children.”
(R. 313, 318.)
Considering the entire record, the
Court finds that substantial evidence supports the ALJ’s
conclusion that Claimant suffered marked limitation in attending
and completing tasks.
c.
Interacting and Relating With Others
The ALJ found that Claimant “has less than marked
limitation in interacting and relating with others.”
(R. 20.)
The Social Security regulations provide that a child between the
ages of six and twelve “should be able to develop more lasting
friendships with children who are [his or her age]” and “should
be well able to talk to people of all ages, to share ideas, tell
stories, and to speak in a manner that both familiar and
unfamiliar listeners readily understand.”
20 C.F.R.
§ 416.926a(i)(2)(iv).
The ALJ specifically referred to the written note from
Claimant’s third-grade teacher and the questionnaire submitted
by Claimant’s second-grade teacher.
(R. 20.)
Claimant’s
second-grade teacher indicated that Claimant has slight to
16
obvious problems functioning in this domain, no problem asking
permission appropriately, and a serious problem relating
experiences and telling stories.
(R. 116.)
Claimant’s third-
grade teacher noted that Claimant often exhibits a “Dr. Jekyll
and Mr. Hyde personality,” but also awarded Claimant a final
grade of “excellent” for her conduct and a final grade of
“satisfactory” for her work habits.
(R. 453-54.)
Claimant’s
mother indicated on the “U.T. Division of Child and Adolescent
Psychiatry Social History Questionnaire” that Claimant
“sometimes” got along well with other children and that it is
not hard for Claimant to make friends.
(R. 546, 549.)
Thus,
there is substantial evidence to support the ALJ’s conclusion
that, although Claimant has some problems in this area, she has
less than marked limitation.
d.
Moving About and Manipulating Objects
The ALJ found that Claimant “has no limitation in moving
about and manipulating objects.”
(R. 21.)
The Social Security
regulations provide that a child between the ages of six and
twelve should be developing gross motor skills, increasing
strength and coordination, and developing fine motor skills.
C.F.R. § 416.926a(j)(2)(iv).
The ALJ correctly points out that there is no evidence of
record that demonstrates impairment in this domain.
(R. 21.)
Claimant’s second-grade teacher observed no problems in this
17
20
domain.
(R. 117.)
In third grade, Claimant received a grade of
“excellent” in physical education and a grade of “satisfactory”
in handwriting.
(R. 454.)
Plaintiff indicated that Claimant is
not limited in physical activities.
(R. 38, 134.)
Accordingly,
the Court finds that substantial evidence supports the ALJ’s
conclusion that Claimant has no limitation in moving about and
manipulating objects.
e.
Caring for Oneself
The ALJ found that Claimant “has no limitation in the
ability to care for herself.”
(R. 22.)
The Social Security
regulations provide that a child between the ages of six and
twelve should be independent in most day-to-day activities,
although he or she “may still need to be reminded sometimes to
do these routinely.”
20 C.F.R. § 416.926a(k)(2)(iv).
The child
should begin to recognize that he or she is more competent in
some activities than others.
Id.
The child should be able to
consistently control his or her behavior and should begin to
develop an understanding of acceptable and unacceptable
behavior.
Id.
The ALJ correctly points out that there is no evidence of
record that demonstrates impairment in this domain.
(R. 22.)
Claimant’s second-grade teacher observed no problems in this
domain.
(R. 118.)
Claimant’s third-grade teacher also did not
note any concerns in this area.
(R. 453.)
18
Plaintiff reported that Claimant performs most activities
necessary to care for herself, but does not or cannot button
clothes by herself, brush her teeth, eat by herself using a
knife, fork, and spoon, obey safety rules, or accept criticism
or correction.
(R. 136.)
At the ALJ hearing, however,
Plaintiff explained that Claimant can take care of herself “[i]f
you get on to her.”
(R. 38.)
Plaintiff testified that Claimant
“does prepare herself” for school in the morning, but that she
has to be told to brush her teeth and take a shower.
(R. 39.)
Dr. Beebe, the consultative examiner, similarly observed that
Claimant can “attend to her own toileting and hygiene needs
independently,” “is able to dress herself without assistance,”
and “is able to pick out her own clothes.”
(R. 316.)
Dr. Beebe
further observed that Claimant “sometimes needs reminding to
bathe and brush her teeth.”
(Id.)
Accordingly, Claimant’s abilities are largely consistent
with the age-appropriate Social Security behavior guidelines.
There is substantial evidence in the record to support the ALJ’s
finding that Claimant does not suffer an impairment in this
area.
f.
Health and Physical Well-Being
The ALJ found that Claimant “has no limitation in health
and physical well-being.”
(R. 22.)
This factor relates to “the
cumulative physical effects of physical or mental impairments
19
and their associated treatments or therapies on [a claimant’s]
functioning.”
20 C.F.R. § 416.926a(l).
At the ALJ hearing, Plaintiff agreed that Claimant had no
physical problems or other issues with her health and physical
well-being.
(R. 39-40.)
Claimant’s medical records also do not
reflect any physical limitations.
446-451, 527-545.)
(See R. 289-310, 313, 321-34,
Accordingly, substantial evidence in the
record supports the ALJ’s finding that Claimant has no
limitation in this domain.
IV.
CONCLUSION
In the instant case, Plaintiff failed to carry the burden
of proof.
Plaintiff has not shown that the ALJ applied the
incorrect standard or that there is not substantial evidence to
support the ALJ’s finding that Claimant is not disabled under
section 1614(a)(3)C) of the Social Security Act.
For the foregoing reasons, the decision of the Commissioner
is AFFIRMED.
IT IS SO ORDERED, this 18th day of May, 2016.
/s/ Jon P. McCalla
JON P. McCALLA
U.S. DISTRICT COURT JUDGE
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