H., E. v. Saul, Andrew

CourtDistrict Court, W.D. Wisconsin
DecidedOctober 8, 2020
Docket3:20-cv-00038
StatusUnknown

This text of H., E. v. Saul, Andrew (H., E. v. Saul, Andrew) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
H., E. v. Saul, Andrew, (W.D. Wis. 2020).

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

E.R.H., a minor child, by and through Hailey Halmstad, his mother,

Plaintiff, OPINION AND ORDER v. 20-cv-038-wmc ANDREW M. SAUL, Commissioner of Social Security,

Defendant.

Pursuant to 42 U.S.C. § 405(g), plaintiff E.R.H (“ERH”), a minor child represented “by and through” his mother, Hailey Halmstad, seeks judicial review of a final determination that he was not disabled within the meaning of the Social Security Act. ERH contends that remand is warranted because the administrative law judge (“ALJ”): (1) erred by concluding that ERH’s severe impairments did not meet or medically equal either Listing 101.18 (soft-tissue injuries) or 112.15 (trauma- or stressor-related disorders); (2) erred by failing to apply the correct legal standard under SSR 09-1p; (3) erred in making a disability funding which is not supported by substantial evidence of record; and (4) abused his discretion in assigning weight to medical opinions. For the reasons that follow, the court will affirm the denial of benefits. FACTS1 A. Background Plaintiff ERH was born on June 14, 2004, and applied for child’s insurance benefits on March 27, 2014, claiming a disability onset date of January 7, 2014 -- the date of a

tragic accident in which ERH caught his hand in a meat grinder, resulting in the amputation of all of his fingers on his right hand. ERH was a school-aged child on the date his application was filed and an adolescent at the time of his final hearing before the ALJ. See 20 C.F.R. § 416.926a(g)(2). ERH claimed disability based on his hand injury. (AR 274.)

B. ALJ Decision ALJ Michael Hellman held an evidentiary hearing via videoconference on March 15, 2019, at which plaintiff appeared personally, by his mother and counsel.2 As of the alleged onset date, the ALJ found that ERH had the following severe impairments: post

partial transmetacarpal amputation and post-traumatic stress disorder (“PTSD”). (AR 22.) In so finding, the ALJ determined that ERH’s post left radial fracture was a non-severe impairment because “there were no significant objective medical findings in the record to support more than minimal limitations on the claimant’s ability arising from this

1 The following facts are drawn from the administrative record (dkt. #7), including the ALJ hearing transcript (dkt. #16). 2 This was the second of two video hearings with the same ALJ. The first hearing was held on February 22, 2017. After the ALJ issued an unfavorable decision, ERH appealed that denial, which the Appeals Council vacated and remanded for further consideration of ERH’s PTSD diagnosis and possible mental impairments. (PL.’s Br. (dkt. #9) 2 (citing AR 294-312, 320).) impairment.” (AR 23.) Specifically, the ALJ noted that while an August 2014 medical note mentioned a possible fracture, there was nothing in the record to suggest any limitations caused by this impairment lasted more than 12 months.

Next, the ALJ considered whether any of plaintiff’s other impairments (or combination of impairments) met or medically equaled any of the listings. Material to this appeal, the ALJ considered whether plaintiff met Listing 112.15, which concerns trauma- and stressor-related disorders. In particular, the ALJ analyzed the “paragraph B” criteria to determine whether ERH had at least one extreme limitation or two marked limitations.

The ALJ concluded that ERH had: mild limitations in understanding, remanding, or applying information; moderate limitations in interacting with others; moderate limitations in concentrating, persisting, or maintaining pace; and moderate limitations in adapting or managing oneself. However, because the ALJ concluded that ERH did not have at least two marked limitations or one extreme limitation, he found that the “paragraph B” criteria was not satisfied. As for the “paragraph C” criteria, the ALJ found

that these were also not satisfied because the record did not establish that ERH had a “serious and persistent” mental disorder. (AR 23-24.)The ALJ also considered whether ERH met the requirements of Listing 101.08, which concerns soft tissue injuries, but found that the criteria were not met because the “record does not show a soft tissue injury to the body under continuing surgical management, as defined in 101.00M, directed toward the salvage or restoration of major function, and such major function was not restored or

expected to be restored within 12 months of onset.” (AR 23.) Having excluded the applicability of any specific listing, the remainder of the ALJ’s opinion largely addressed whether ERH had an impairment or combination of impairments that functionally equaled the listings. In conducting this analysis, the ALJ considered six,

specific domains of functioning, noting that he evaluated the “whole child” in making these findings and reviewed “all of the relevant evidence.” (AR 24.) This evidence included ERH’s testimony that: he is now 14-years-old and in the ninth grade; he receives average grades, consisting of mostly B’s and C’s, has not been held back in school, and receives no special services; he sees a physical therapist at school every month; he used to play hockey,

but switched to playing basketball due to problems handling the stick; he does not have any friends and does not trust anyone because of being picked on and wronged by people in the past; he needs help with buttoning and using zippers; he can perform chores, but often is unable to complete tasks; he avoids social situations due to bullying; and he had difficulty concentrating in school. (AR 25.) ERH’s mother also testified to her son’s limitations: he takes tests in a separate room at school due to difficulty concentrating as a

result of his PTSD; he used a myoelectric prosthesis for approximately one year but then stopped using it because he felt it was more of a hindrance; she helps him with personal care, dressing and food preparation; he has been unfairly treated by coaches and parents due to his impairment; and he avoids situations that remind him of the accident. (AR 25- 26.) The ALJ also considered reports ERH’s mother submitted describing his limitations, which appear to be largely consistent with her testimony during the hearing. As a whole,

however, the ALJ found that ERH’s and his mother’s “statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely consistent with the medical evidence and other evidence in the record.” In reaching this conclusion, the ALJ specifically noted educational and medical records show ERH had learned to be very independent with his one hand and residual use of his remaining limb to the point that he

required minimal assistance, including riding a dirt bike, participating fulling in sports and working with his grandfather. While educational records show that ERH tends to be disruptive and turns in work late, the ALJ noted they also show that he interacts well with his peers and strives to do well academically. (AR 26.) The ALJ also reviewed ERH’s medical records, showing: that he did well after surgery; was fitted for a prosthetic; and

was still able to shoot a gun, ride a bike with modifications and play hockey and guitar. (AR 27.) The ALJ next noted that ERH’s right wrist and skin looked excellent in follow- up appointments; he had a surgical revision in May 2018 to address bone overgrowth; and no additional problems were documented after this surgery. (AR 27.) As for his mental health, the ALJ reviewed his treatment notes with Brad Grunert, Ph.D., who ERH started to see in March 2017.

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H., E. v. Saul, Andrew, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-e-v-saul-andrew-wiwd-2020.