United States District Court, D. Minnesota
Katherine Menendez United States Magistrate Judge
case, Erika Manker appeals the Commissioner of the Social
Security Administration's (“SSA”) denial of
an application for disability benefits that she filed on
behalf of her minor child, CEK. It is now before the Court on
the parties' cross-motions for summary judgment.
[Pl.'s Mot, ECF No. 18; Def.'s Mot., ECF No. 21.] Ms.
Manker argues that the Commissioner's decision must be
reversed because the Administrative Law Judge
(“ALJ”) misapplied the governing law in
concluding that CEK is not disabled. She also argues that the
ALJ's conclusion is not supported by substantial
evidence. For the reasons that follow, Ms. Manker's
motion is denied, the Commissioner's motion is granted,
and this action is dismissed.
October 30, 2013, when CEK was five years old, Ms. Manker
filed an application for supplemental security income on his
behalf. CEK has several severe impairments, including: an
immune deficiency known as hypogammaglobinemia; asthma;
celiac disease; esophageal esophagitis; food allergies;
adjustment disorder; generalized anxiety disorder;
posttraumatic stress disorder; and an overanxious disorder.
CEK's immune disorder causes upper respiratory infections
on a fairly regular basis and required the surgical
implantation of a pump so that he could receive monthly
infusions of medications. His celiac disease and food
allergies require a very strict (and expensive) diet. Ms.
Manker packs special meals for him to take to school and care
must be taken to avoid contamination of his food with
allergens. Despite his careful diet, he has experienced
digestive problems including bowel issues and incontinence.
CEK's mental impairments create challenges in the home.
He has behaved violently toward his mother at times, refused
to follow her instructions, thrown tantrums, and blamed
himself for issues in the home. However, CEK is able to read
and write at an above average level for his age, and his
kindergarten teacher noticed no behavioral issues at school.
application for benefits was initially denied on January 9,
2014, and Ms. Manker requested reconsideration of that
decision. On reconsideration, Dr. Milford Schwartz evaluated
the medical records provided to determine whether any of
CEK's impairments alone, or in combination, meets or
medically equals the severity of listed impairments, or
functionally equals a listing. See 20 C.F.R. §
416.924(d). For childhood disability cases, this required Dr.
Schwartz to evaluate CEK's functioning across six
domains: (1) acquiring and using information; (2) attending
and completing tasks; (3) interacting and relating with
others; (4) moving about and manipulating objects; (5) caring
for yourself; and (6) health and physical well-being.
See 20 C.F.R. § 416.926a(b). A child's
“impairment(s) is of listing-level severity if [he]
ha[s] ‘marked' limitations in two of the domains .
. . or an ‘extreme' limitation in one
domain.” Id. § 416.926a(d). A
child's impairment or combination of impairments must
also meet “the duration requirement, ”
id., which means that the impairment “must
have lasted or must be expected to last for a continuous
period of at least 12 months, ” 20 C.F.R. §
Schwartz found that CEK had marked limitations in two of the
six domains-“caring for yourself” and
“health and physical well-being.” Despite finding
marked limitations in these two domains, the reconsideration
form indicates that CEK is “Not Disabled” in its
“determination” section. [AR 121.] On August 5, 2014,
the SSA sent Ms. Manker a notice indicating that CEK's
application was denied at the reconsideration level. [AR
130-34.] Ms. Manker requested a hearing before an ALJ.
August 6, 2015, ALJ Christel Ambuehl held a video hearing,
and on January 28, 2016, she issued a written decision
denying CEK's application based on the three-step
sequential evaluation for childhood disability
claims. At the first two steps, the ALJ found that
CEK had not engaged in substantial gainful activity and that
he had the severe impairments identified above. At the third
step, ALJ Ambuehl found that CEK does not have an impairment
or combination of impairments that meets or medically equals
any of the listed impairments. ALJ Ambuehl also evaluated the
six domains governing functional equivalence. ALJ Ambuehl was
ultimately “satisfied that the evidence does not
reflect any full and continuous 12-month period wherein
[CEK's] functioning fell below that identified throughout
[her] decision.” [AR 28.] Accordingly, she concluded
that CEK did not demonstrate functional equivalence and was
childhood disability case such as this, the Court
“reviews a decision by an ALJ ‘to determine
whether it is supported by substantial evidence on the record
as a whole.'” Pepper ex rel. Gardner v.
Barnhart, 342 F.3d 853, 855 (8th Cir. 2003) (quoting
Bailey v. Apfel, 230 F.3d 1063, 1065 (8th Cir.
2000), and 42 U.S.C. § 405(g)). “Substantial
evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the
Commissioner's conclusion.” England v.
Astrue, 490 F.3d 1017, 1019 (8th Cir. 2007) (quoting
Stormo v. Barnhart, 377 F.3d 801, 805 (8th Cir.
2004) (quoting Prosch v. Apfel, 201 F.3d 1010, 1012
(8th Cir. 2000))). The substantial evidence standard requires
the Court to consider evidence that supports the
Commissioner's findings as well as evidence that detracts
from the decision. Scott ex rel. Scott v. Astrue,
529 F.3d 818, 821 (8th Cir. 2008). However, “[i]f
substantial evidence supports the decision, [the Court] will
not reverse, even if substantial evidence could have been
marshaled in support of a different outcome.”
England, 490 F.3d at 1019.
motion for summary judgment, Ms. Manker argues that the ALJ
erred in the functional-equivalence determination. Because it
is uncontested that CEK experiences marked limitations in the
health and physical well-being domain, Ms. Manker focuses
primarily on the ALJ's decision to discount Dr.
Schwartz's finding of marked limitations in the
“caring for yourself” domain. [See
Pl.'s Mem. at 3-16.] Therefore, “the pivotal issue
[is] whether there is substantial evidence in the record to
support the finding that [CEK's] impairments do not rise
to the . . . functional level of severity necessary to equal
a disability listed in Appendix 1 of 20 C.F.R. § 404,
Subpart P.” See Gardner, 230 F.3d at 855. For
the reasons that follow, the Court affirms the ALJ's
Caring For Yourself
“caring for yourself” domain requires
consideration of how well CEK maintains his emotional and
physical health, including the ability to fulfill wants and
needs, as well as cope with stress and change, and caring for
his own health, possessions, and living area. 20 C.F.R.
§ 416.926a(k). This domain indicates that a preschool
age child (3 to 6 years old) should “want to take care
of many of [his] physical needs by [himself] (e.g., putting
on your shoes, getting a snack), and also want to try doing
some things that [he] cannot do fully (e.g., tying your
shoes, climbing on a chair to get something up high, taking a
bath).” Id. § 416.926a(k)(2)(iii).
Evaluating the domain for such a child also contemplates that
he will be more likely to follow instructions of a caregiver
earlier in the age range than when he gets older and attains
more independence. Id. A school-age child (6 to 12
years old) “should be independent in most day-to-day
activites (e.g., dressing yourself, bathing yourself),
although [he] may still need to be reminded sometimes to do
these routinely.” Id. §
416.926a(k)(2)(iv). Such children: begin to realize they are
capable of doing some activities, but not others; identify
when they feel good or bad about themselves; understand
differences between right and wrong, including behaviorally;
and demonstrate control over behaviors. Id.
of limitations in this domain include:
(i) You continue to place non-nutritive or inedible objects
in your mouth.
(ii) You often use self-soothing activities showing
developmental regression (e.g., thumbsucking, re-chewing
food), or you have restrictive or stereotyped mannerisms
(e.g., body rocking, headbanging).
(iii) You do not dress or bathe yourself appropriately for
your age because you have an impairment(s) that affects this
(iv) You engage in self-injurious behavior (e.g., suicidal
thoughts or actions, self-inflicted injury, or refusal to
take your medication), or you ignore safety rules.
(v) You do not spontaneously pursue enjoyable activities or