United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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.
NATURE OF ACTION AND PRIOR PROCEEDINGS
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).
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).
DEFENDANT'S MOTION TO STRIKE
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.
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
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.
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.
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
must further demonstrate good cause for not having
incorporated the new evidence into the administrative record.
Hinchey v. Shalala, 29 F.3d 428, 43233 (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.
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
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).
STATEMENT OF ISSUES
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.
STANDARD OF REVIEW
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, 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. §§