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Dunn v. Colvin

United States District Court, D. Nebraska

January 18, 2017

MENDORA DUNN ON BEHALF OF M.D.B, a minor, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration Defendant.


          Richard G. Kopf Senior United States District Judge.

         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.


         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).


         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.

         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, 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.

         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 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).


         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.


         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, 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. ยงยง ...

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