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Regan v. Saul

United States District Court, D. Colorado

September 25, 2019

TODD E. REGAN, Plaintiff,
ANDREW M. SAUL, Acting Commissioner of Social Security, [1] Defendant.



         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.


         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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