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Flores v. Berryhill

United States District Court, W.D. Kentucky, Owensboro Division

March 29, 2019

SANDRA FLORES O/B/O K.K.F., F/K/A K.K.D.O. PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          H. BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE

         BACKGROUND

         Before the Court is the complaint (DN 1) of Sandra Flores o/b/o K.K.F., f/k/a K.K.D.O. ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 17) and Defendant (DN 27) have filed a Fact and Law Summary. Additionally, Plaintiff has filed a motion for judgment on the pleadings (DN 17) and Defendant has filed a response (DN 27). For the reasons that follow, the final decision of the Commissioner is AFFIRMED, and judgment is GRANTED for the Commissioner.

         Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the undersigned United States Magistrate Judge conducting all further proceedings in this case, including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed (DN 15). By Order entered July 19, 2018 (DN 14), the parties were notified that oral arguments would not be held unless a written request therefor was filed and granted. No. such request was filed.

         FINDINGS OF FACT

         On February 3, 2005, Plaintiff filed an application for Supplemental Security Income on behalf of K.K.D.O., a two-year old child (Tr. 180-82). In a determination dated July 7, 2005, K.K.D.O. was found to be disabled as of May 1, 2004 (Tr. 11, 61, 65-80). At the time her primary diagnosis was communications disorder and her secondary diagnosis was asthma (Tr. 14, 61).

         On October 22, 2012, it was determined that medical improvement occurred as of that date and K.K.D.O. was no longer disabled (Tr. 15, 63, 64, 81-86). By then her primary diagnosis was communications disorder and her secondary diagnosis was attention deficit hyperactivity disorder (ADHD) (Tr. 63). On October 26, 2012, Plaintiff executed a form indicating she wished to continue receiving benefits on behalf of K.K.D.O. while she appealed the determination that K.K.D.O.'s disability had ceased (Tr. 87-88).

         At the reconsideration level, State Agency Disability Hearing Officer James Polivka conducted a hearing on May 12, 2015 (Tr. 11, 102-120). On May 20, 2015, he issued a decision upholding the initial determination that K.K.D.O., who by then was 12 years old, was no longer disabled as of October 22, 2012 (Tr. 11, 102-120, 121-127).

         Plaintiff again executed a form indicating she wished to continue receiving benefits on behalf of K.K.D.O. while she appealed the determination that K.K.D.O.'s disability had ceased (Tr. 130-31). Plaintiff also filed a request for a hearing by an Administrative Law Judge (Tr. 132-135).

         On April 26, 2017, Administrative Law Judge Jennifer B. Thomas (“ALJ”) conducted a video hearing from Paducah, Kentucky (Tr. 11, 34). Plaintiff, her daughter K.K.D.O., and their attorney John R. Sharpensteen, III, participated from Owensboro, Kentucky (Tr. 11, 32, 34).

         In a decision dated August 3, 2017, the ALJ evaluated whether K.K.D.O., who had not attained age 18, continued to be disabled (Tr. 11-27). The ALJ applied a three-step sequential evaluation process promulgated by the Commissioner (Tr. 11-27). See 20 C.F.R. § 416.994a((b). The ALJ began her assessment by recognizing the “comparison point decision” or CPD was dated July 7, 2005 and K.K.D.O.'s medically determinable impairments were found to functionally equal the listings (Tr. 14). See 20 C.F.R. §§ 416.924(d), 416.9 26a.

         In Finding Nos. 3 and 4, the ALJ concluded medical improvement occurred as of October 22, 2012, and K.K.D.O. was currently an adolescent (Tr. 15). See 20 C.F.R. §§ 416.926a(c) and (g)(2). In Finding No. 5, the ALJ determined since October 22, 2012, the impairments that K.K.D.O. had at the time of the CPD have not functionally equaled the Listings of Impairments (Id.). See 20 C.F.R. §§ 416.994a(b)(2), 416.926a, Social Security Ruling 05-03p. In reaching this determination, the ALJ made findings regarding the degree of limitation the impairments have caused since October 22, 2012 in six broad areas of functioning called domains[1] (Tr. 15-23). The ALJ concluded since October 22, 2012, the impairments present at the CPD have not resulted in either “marked” limitation in two domains of functioning or “extreme” limitation in one domain of functioning (Tr. 22-23). Consequently, the ALJ found the impairments have not functionally equaled the listings since October 22, 2012 (Id.).

         In Finding No. 6, the ALJ determined since October 22, 2012, K.K.D.O. had the following severe impairments: ADHD; communication disorder; social anxiety disorder; and selective mutism (Tr. 23). In Finding Nos. 7 and 9, the ALJ determined since October 22, 2012, K.K.D.O. has not had an impairment or combination of impairments that meets or medically equals one of the listed impairments in Appendix 1 (Id.). In Finding Nos. 8 and 10, the ALJ found since October 22, 2012, K.K.D.O. has not had an impairment or combination of impairments that functionally equals the listings (Id.). The ALJ explained that K.K.D.O. does not have either “marked” limitations in two domains of functioning or “extreme” limitation in one domain of functioning (Tr. 23-26). In Finding No. 11, the ALJ concluded that K.K.D.O.'s disability ended as of October 22, 2012, and she has not become disabled again since that date (Tr. 26-27).

         Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 177). The Appeals Council denied Plaintiff's request for review (Tr. 1-3).

         CONCLUSIONS ...


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