Vega ex rel. K.I.V. v. Colvin

• Decision Date: 10 September 2015
• Docket Number: No. C14–4060–LTS,C14–4060–LTS
• Citation: 128 F.Supp.3d 1121
• Parties: Marisol Vega, on behalf of K.I.V., Plaintiff v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Iowa

128 F.Supp.3d 1121

Marisol Vega, on behalf of K.I.V., Plaintiff

v.Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

No. C14–4060–LTS

United States District Court, N.D. Iowa, Western Division.

Signed September 10, 2015

Roger L. Carter, Carter and Carter LLC, Columbia, MO, for Plaintiff.

Linda Green, Social Security Administration, Dallas, TX, Stephanie Johnson Wright, U.S. Attorney's Office, Cedar Rapids, IA, for Defendant.

MEMORANDUM OPINION AND ORDER

LEONARD T. STRAND, UNITED STATES MAGISTRATE JUDGE

Plaintiff Marisol Vega (Vega), on behalf of her child, K.I.V., seeks judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying her application for child Supplemental Security Income benefits (SSI) under Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq . (Act). Vega Contends that the administrative record (AR) does not contain substantial evidence to support the commissioner's decision that K.I.V. was not disabled during the relevant time period. For the reasons that follow, the commissioner's decision will be reversed and remanded.

I. BACKGROUND

K.I.V. was born in 2003 and was in the fourth grade at the time of hearing. AR 38, 134. Vega alleges that K.I.V. is disabled due to partial complex seizures with secondarily generalized tonic-clonic seizures, attention deficit hyperactivity disorder and anxiety disorder. AR 291, 680. Vega protectively filed an application for SSI On K.I.V.'s behalf on August 31, 2011., AR 64-65, 72–73, 134–40. She alleged that K.I.V. has been disabled since January 1, 2009. AR 134.

The application was denied initially and on reconsideration. AR 82–84, 89–92. Vega then sought a hearing before an administrative law judge (ALJ). On March 4, 2013, ALJ Jan Dutton conducted a hearing, at which Vega and K.I.V. Testified. AR 33–63. On April 4, 2013, the ALJ Issued a decision denying the claim. AR 10–27. The Appeals Council denied Vega's request for review on June 24, 2014. AR 1–3. The ALJ'S decision thus became the final decision of the Commissioner. AR 1; 20 C.F.R. § 416.1481.

Vega filed a complaint (doc. No. 3) in this court on September 12, 2014, seeking review of the ALJ'S Decision. On October 20, 2014, with the consent of the parties (Doc. No. 6), the Honorable Mark W. Bennett transferred this case to me for final disposition and entry of judgment. The parties have now briefed the issues and the matter is fully submitted.

II. DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

The Commissioner's regulations establish a three-step sequential evaluation process for determining whether a child is disabled as defined in the Act: (1) determination of whether the child is engaged in "substantial gainful activity," (2) determination of whether the child's impairment or combination of impairments is severe, and (3) determination of whether the child's impairment or combination of impairments "meets, medically equals, or functionally equals" a listed impairment. See 20 C.F.R. § 416.924(a).

At Step One, if the child is engaged in substantial gainful activity, the child is not disabled. Id. § 416.924(b). At Step Two, if the child's impairment or combination of impairments amounts only to "a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," the child is not disabled. Id. § 416.924(c). At Step Three, if the child's impairment or combination of impairments does not "meet, medically equal, or functionally equal" a listed impairment, the child is not disabled. Id. § 416.924(d). A listed impairment is an impairment considered to be severe enough to prevent a child from doing any gainful activity and is characterized by "impairments that cause marked and severe functional limitations." Id. § 416.925(a). the listings are located at 20 C.F.R. Part. 404, Subpart P, Appendix 1.

When determining at step three whether the child's impairment or combination of impairments is functionally equivalent to a listed impairment, an ALJ must consider six domains of functionality: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating objects, (5) ability to care for oneself and (6) health and physical wellbeing. 20 C.F.R. § 416.926a(b)(1). to be found disabled at Step Three, the child's impairment or combination of impairments "must result in ‘marked’ limitations in two domains of [functionality] or an ‘extreme’ limitation in one domain." 20 C.F.R. § 416.926a(a).

III. THE ALJ'S FINDINGS

The ALJ made the following findings:

(1) The claimant was born on January 31, 2003. Therefore, she was a preschooler on August 31, 2011, the date 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 August 31, 2011, the application date (20 CFR 416.924(b) and 416.971 et seq . ).

(3) The claimant has the following severe impairments: complex partial seizure disorder (controlled with medication), attention deficit hyperactivity disorder, and anxiety. (20 CFR 416.924(c) ).

(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of 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 severity of the listings (20 CFR 416.924(d) and 416.926(a).

(6) The claimant has not been disabled, as defined in the Social Security Act, since August 31, 2011, the date the application was filed (20 CFR 416.924(a) ).

AR 13–27.

IV. THE SUBSTANTIAL EVIDENCE STANDARD

The Commissioner's decision must be affirmed "if it is supported by substantial evidence on the record as a whole." Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.2006) (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.2005) ); see 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive...."). "Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion." Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir.2003). The Eighth Circuit Court of Appeals has explained this standard as "something less than the weight of the evidence and [that] allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal." Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.1994).

In determining whether the Commissioner's decision meets this standard, the court considers "all of the evidence that was before the ALJ, but it [does] not re-weigh the evidence." Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir.2005). The court considers both evidence which supports the Commissioner's decision and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir.2010). The court must "search the record for evidence contradicting the [Commissioner's] decision and give that evidence appropriate weight when determining whether the overall evidence in support is substantial." Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir.2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir.1991) ).

In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Sec'y of Health & Human Servs., 879 F.2d 441, 444 (8th Cir.1989). The court, however, does not "reweigh the evidence presented to the ALJ," Baldwin, 349 F.3d at 555 (citing Bates v. Chater, 54 F.3d 529, 532 (8th Cir.1995) ), or "review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir.1996) (citing Naber v. Shalala, 22 F.3d 186, 188 (8th Cir.1994) ). Instead, if, after reviewing the evidence, the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the court] must affirm the [Commissioner's] denial of benefits." Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.2008) ). This is true even in cases where the court "might have weighed the evidence differently." Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992) ). The court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984) ; see alsoGoff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005) ("[A]n administrative decision is not subject to reversal simply because some evidence may support the opposite conclusion.").

V. DISCUSSION

Vega contends the ALJ's decision is not supported by substantial evidence and makes the following arguments:

(1) The ALJ failed to discuss or explain the correct criteria for Listings 112.06 and 112.011, and failed to discuss or explain any factual evaluation of the criteria of those listings; and failed to even consider the Listing for Plaintiff's seizure disorder, Listing 111.03.

(2) The ALJ failed to consider or explain reasons for not considering treating source opinions, and failed to develop the record fully by contacting treating sources or by obtaining medical expert assistance or consultative evaluations.

(3) The ALJ discounted the sworn testimony of K.I.V. and Vega without providing good reasons for doing so.

I will address these arguments separately.

A. Evaluations of Listing Criteria

Vega argues that the ALJ failed to conduct an appropriate evaluation of Listings 112.06 and 112.11. Additionally, she contends that the ALJ failed to even consider the applicable listing for K.I.V.'s alleged seizure disorder. The Commissioner argues that the ALJ correctly considered Listings 112.06 and...