United States District Court, D. Colorado
TODD E. REGAN, Plaintiff,
v.
ANDREW M. SAUL, Acting Commissioner of Social Security, [1] Defendant.
ORDER AFFIRMING DENIAL OF SOCIAL SECURITY DISABILITY
BENEFITS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on Plaintiff Todd E. Regan’s
(“Plaintiff”) appeal of the Commissioner’s
decision denying his claim for child’s insurance
benefits under Title II of the Social Security Act.
Exercising jurisdiction under 42 U.S.C. § 405(g), the
Court affirms the decision of the Administrative Law Judge
(“ALJ”). Additionally, the pending motions that
Plaintiff, who is proceeding pro se, has filed are
denied.
I.
BACKGROUND
This
appeal involves Plaintiff’s 2015 application for
child’s insurance benefits (“CIB”) under
Title II of the Social Security Act. (Doc. # 34
Administrative Record (“AR”) at 22,
493–501.) To obtain these benefits, an adult
claimant-i.e., a claimant over the age of 18-must establish
that he is currently under a disability that began before he
became 22 years old. See 42 U.S.C. §
402(d)(1)(B). Plaintiff was born on August 26, 1964, and he
was 13 years old on the alleged disability onset date of
March 1, 1978. (AR at 25, 30.) Thus, the time period relevant
to Plaintiff’s appeal is from August 1982 (when
Plaintiff turned 18) to August 1986 (when Plaintiff attained
age 22). (Id. at 22.)[2]
Plaintiff
alleged disability during the relevant time period due to
post-traumatic symptom disorder, severe depression, dyslexia,
major head traumas, paranoia, and anti-social personality
disorder. (Id. at 554, 74.) In the Function
Report-Adult, Plaintiff stated that he was “basically
institutionalized since” he was 13 years old, and that
he had an extensive juvenile and adult criminal record.
(Id. at 554.) He was incarcerated for more than 25
years, which he said had “created deep
psychological” problems. Between the ages of 18 and 22,
Plaintiff testified that he was in and out of prison and was
homeless when he was not incarcerated. (Id. at 76,
79.) Additionally, Plaintiff has a significant history of
drug and alcohol abuse. See (id. at 79,
391, 766–74).
Plaintiff
testified that he blames his mother for much of his past,
indicating that she kicked him out of the house at age 13.
(Id. at 74–75.) Plaintiff also reported that
he does not like being around people. (Id. at 560.)
Apart from part-time jobs that he was required to perform
while incarcerated or on probation, Plaintiff has no real
work history. (Id. at 80, 83–84, 1057.)
The
record before the ALJ contained only a few treatment notes
and medical records, all of which were dated more than ten
years after the time period relevant to Plaintiff’s CIB
claim. See (id. at 1010,
1033–45-diagnosis of depression and treatment notes
from 2000 and 2001; 1069–1101-treatment notes from 1998
through 1991; 1046–55, 1066–68-medical marijuana
registries from 2009 through 2016). The record also contained
two consultative psychological examinations. Dr. Robert
Berland evaluated Plaintiff’s mental health status in
October 1987 in connection with his 1986 bank robbery
charges. (Id. at 1029–32.) Additionally, Dr.
Brad Marten examined Plaintiff in connection with his
February 2013 application for Title XVI disability benefits.
(Id. at 1056–65.) Both Drs. Berland and Marten
found, inter alia, that Plaintiff had antisocial
personality disorder with paranoid features. (Id. at
1031, 1063.)
In
February 2017, Plaintiff and his attorney appeared at a
hearing before ALJ Kathryn D. Burgchardt. (Id. at
90–103.) The ALJ explained that she would have to deny
Plaintiff’s claim for CIB benefits as the record
contained no evidence from the relevant time frame.
(Id. at 94–95, 99, 101.) She also told
Plaintiff that the agency had repeatedly tried to get
information relevant to Plaintiff’s claim.
(Id. at 93–94.) In response, Plaintiff told
the ALJ that he had a “whole box of documents”
that he had submitted. (Id. at 98, 101–02.) As
they were not on the electronic file or in the record, the
ALJ granted a continuance to allow Plaintiff and his attorney
an opportunity to submit evidence relating to the time frame
under review. (Id. at 96–97, 102–03.)
The ALJ reiterated that she needed medical evidence between
1982 and 1986. (Id. at 101.)
In
March 2017, Plaintiff and his attorney attended a second
hearing before the ALJ. (Id. at 47–89.) The
ALJ noted that Plaintiff’s attorney had not provided
any additional medical evidence, and that there was “no
medical evidence at all during the period under
review.” (Id. at 49–50.) She further
noted that Plaintiff had submitted a statement (Ex. 37-E),
but indicated that “without any medical evidence, . . .
the regulations” did not allow her to simply accept
that information. (AR at 50, 59.)
Plaintiff’s
attorney informed the ALJ that he had filed a request under
the Freedom of Information Act (“FOIA”) that was
still pending. (Id. at 51.) The ALJ responded that
she did not know what he was waiting for, and that she could
not wait any longer to adjudicate the case. Plaintiff’s
counsel stated he wanted to proceed, and he referenced the
grant of Supplemental Security Income (“SSI”)
benefits to Plaintiff in 2013 to support his case. The ALJ
stated that she could not “use evidence from 2013 . . .
to reach back to a program when [Plaintiff] was 18.”
(Id. at 52.)
Plaintiff
then told the ALJ that he had other evidence to support his
claim, including a federal pre-sentence investigation report,
juvenile records, reports from the Clearwater, Florida police
department and the Pinellas County, Florida Sheriff’s
office, and school records. (Id. at 52–53,
62.) He also said that four juvenile court judges recommended
mental health care between 1978 and 1984 as noted in the
federal pre-sentence investigation report. (Id. at
58.) Although Plaintiff again stated that these documents
were in his electronic file, the ALJ said she did not have
them.
Plaintiff
indicated to the ALJ that he had submitted a box of documents
to the agency’s hearing office which he later picked
up. (Id. at 53–63.) At Plaintiff’s
request, the ALJ granted another short continuance so that
Plaintiff could go to his home to retrieve the box of
documents and bring them to the ALJ for submission to the
record. She explained again that the regulations require
medical evidence that supports the claims, and that without
such evidence, there was nothing she could do for Plaintiff.
(Id. 59.) She also stated that she would not have
time to go through a box with thousands of documents, to
which Plaintiff responded that he would separate the
documents that he thought were relevant. (Id. at
63.)
When
the hearing reconvened four hours later, Plaintiff and his
attorney gave the ALJ the documents that Plaintiff contended
he had originally provided to the agency. (Id. at
67–68; 730–940.) The ALJ noted that Plaintiff had
given her three documents, which had been put into the file
as Exhibits 6F, 7F, and 10F, and that she had considered
them. (Id. at 64–65.) The ALJ informed
Plaintiff that she discovered what happened with his box, and
that agency staff confirmed that Plaintiff had brought the
documents in. (Id. at 66.) The staff went through
the documents one by one and placed anything in the file that
might be relevant to Plaintiff’s disability claim.
(Id.)
Plaintiff
confirmed to the ALJ that between the documents that had been
put into the file and the documents he provided to the ALJ,
she now had all of the reports that existed from the relevant
period. (Id. at 67–68, 77–78.) The ALJ
stated that she would take her time and go through the
information. The ALJ then heard testimony from Plaintiff and
a vocational expert before closing the hearing. (Id.
at 72–89.)
On
April 27, 2017, the ALJ issued a decision denying
Plaintiff’s application for CIB. (Id. at
19–38.) The ALJ found at step one of the five-step
sequential evaluation process that prior to age 22, Plaintiff
had severe impairments of personality disorder, drug/alcohol
abuse, and psychotic affective disorder. (Id. at
25.) At step two, the ALJ found that Plaintiff’s
impairments or combination of impairments did not meet or
medically equal the criteria of a listed impairment.
The ALJ
then assessed Plaintiff’s residual functional capacity
(“RFC”). She found that prior to age 22,
Plaintiff had the RFC “to perform work that was
unskilled with a specific vocational preparation
(“SVP”) of 1 or 2, not in close proximity to
co-workers or supervisors, meaning the claimant could not
function as a member of the team, and with minimal to no
direct contact with the public.” (Id. at 26.)
At step four, the ALJ found that Plaintiff had no past
relevant work. Considering Plaintiff’s age, education,
work experience, and RFC, the ALJ found at step five, with
the assistance of a vocational expert, that there are jobs
existing in significant numbers that Plaintiff can perform.
(Id. at 30, 85–86.) Accordingly, the ALJ found
that Plaintiff was not under a disability “at any time
prior to August 25, 1986, the date he attained age 22.”
(Id. at 31.)
Subsequently,
the Appeals Council declined Plaintiff’s request for
review. (Id. at 39–42.) Therefore, the
ALJ’s decision became the final decision of the
Commissioner of Social Security. This appeal followed.
II.
STANDARD OF REVIEW
Under
certain circumstances, Title II of the Social Security Act
provides benefits to an adult child of an individual who is
entitled to old-age or disability insurance benefits or who
dies a fully or currently insured person. 42 U.S.C. §
402(d)(1). A claimant over the age of 18 is entitled to CIB
on the earnings record of an insured person if he (1) applies
for such benefits; (2) is the child of the insured person;
(3) was dependent upon the insured person; (4) is not
married; and (5) is under a disability which began before he
reached 22 years of age. Id.; 20 C.F.R. §
404.350.
Plaintiff
seeks CIB on the earning record of his father. (AR at 75.) To
obtain the benefits, Plaintiff must demonstrate “that
he had a disability before attaining age 22 and that this
disability continued without interruption through the date of
his application.” Miracle v. Barnhart, 187 F.
App’x 870, 871 n.1 (10th Cir. 2006).
The
claimant bears the burden of proving he has a
“disability, ” which the Act defines as the
inability to work at substantially gainful levels by reason
of a severe physical or mental impairment that can be
expected to result in death or which has lasted or can be
expected to last for at least 12 consecutive months. 42
U.S.C. § 423. In determining whether a child was under a
disability after age 18 but prior to age 22, the Commissioner
relies on the five-step sequential evaluation used to
determine disability in adults. See Geist v. Astrue,
No. 09-cv-00614-REB, 2010 WL 3777335, at *2 (D. Colo. Sept.
20, 2010).
A
court’s review of the determination that a claimant is
not disabled is limited to determining whether the
Commissioner applied the correct legal standard and whether
the decision is supported by substantial evidence.
Hamilton v. Sec’y of Health and Human Servs.,
961 F.2d 1495, 1497–98 (10th Cir. 1992). Substantial
evidence is evidence that a reasonable mind would accept as
adequate to support a conclusion. Brown v. Sullivan,
912 F.2d 1194, 1196 (10th Cir. 1990). “It requires more
than a scintilla of evidence but less than a preponderance of
the evidence.” Gossett v. Bowen, 862 F.2d 802,
804 (10th Cir. 1988).
The
court must “meticulously examine the record as a whole,
including anything that may undercut or detract from the
ALJ’s findings in order to determine if the
substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2007). Evidence
is not substantial if it is overwhelmed by other evidence or
constitutes mere conclusion. Musgrave v. Sullivan,
966 F.2d 1371, 1374 (10th Cir. 1992). Courts must use common
sense in reviewing an ALJ's decision, and they
“must not ‘insist on technical
perfection.’” Jones v. Colvin, 514 F.
App’x 813, 823 (10th Cir. 2013) (citation omitted). The
court may not reweigh the evidence nor substitute its
judgment for the Commissioner’s. Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).
III.
ANALYSIS
A.
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