United States District Court, W.D. Kentucky, Owensboro Division
SANDRA FLORES O/B/O K.K.F., F/K/A K.K.D.O. PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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).
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).
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).
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).
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.
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 (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.).
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).
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).