Kitt v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHICO K.,1

Plaintiff,

Civil Action 1:22-cv-416

v. Magistrate Judge Chelsey M. Vascura

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff, Michico K., (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review

of a final decision of the Commissioner of Social Security (“Commissioner”) denying her

application for Children’s Insurance Benefits (“CDB”) under Title II of the Social Security Act.

This matter is before the Court for consideration of Plaintiff’s Statement of Errors (ECF No. 9);

the Commissioner’s Memorandum in Opposition (ECF No. 12); Plaintiff’s Reply (ECF No. 12);

and the administrative record (ECF No. 8). For the reasons that follow, the Commissioner’s non-

disability determination is AFFIRMED, and Plaintiff’s Statement of Errors is OVERRULED.

I. BACKGROUND

This is not Plaintiff’s first benefits application. The record reflects that in May 1996, the

Social Security Administration (“SSA”) determined that Plaintiff met Listing 12.04—formerly

referred to as affective disorders, currently referred to as depressive, bipolar, and related

1 Pursuant to this Court’s General Order 22-01, any opinion, order, judgment, or other

disposition in Social Security cases shall refer to plaintiffs by their first names and last initials.

disorders—with an established onset date of January 1, 1996, which was approximately six

months after her twenty-second birthday. (R. 50.)2 The record also reflects that SSA

subsequently conducted a continuing disability review. (Id.) Because SSA lost the paper file

related to Plaintiff’s 1996 benefits award, and because Plaintiff was uncooperative, SSA

terminated her benefits in June 2016. (Id.) After that, SSA investigated Plaintiff’s case and

continued her benefits in December 2016 for meeting Listing 12.03—schizophrenia spectrum

and other psychotic disorders. (Id.)

Plaintiff’s father also died in 2016. (R. 141.) Three years later, on November 22, 2019,

Plaintiff protectively filed the instant CDB application alleging that she has been disabled since

birth. (R. 139–40.) After that application was denied at the initial and reconsideration levels, a

telephonic hearing was held on August 9, 2021, before an Administrative Law Judge (“the ALJ”)

who issued an unfavorable determination on August 26, 2021. That unfavorable determination

became final when the Appeals Council denied Plaintiff’s request for review on May 23, 2022.

Plaintiff seeks judicial review of that final determination. She submits that remand is

warranted3 because the ALJ erred by finding that she was not disabled before she reached her

twenty-second birthday in June 1995. (Pl.’s Statement of Errors 11–18, ECF No. 11.)

Specifically, Plaintiff contends that the ALJ erred by failing to consider if she met Listing 12.04

before she was 22. (Id. at 11–16.) Plaintiff also contends that the ALJ erred by failing to properly

consider evidence that the Veteran’s Administration (“VA”) found that she was disabled before

2 The record appears to show that Plaintiff may have filed an application or applications for

benefits in 1991 and 1993. (R. 1149, 1166, 1173, 1093, 1095.)

3 In her Reply, Plaintiff appears to challenge, for the first time, the ALJ’s consideration of the

state agency reviewers’ administrative findings. (Pl.’s Reply 4–5, ECF No. 11.) But a party

cannot raise a new argument for the first time in a Reply. Bishop v. Oakstone Acad., 477

F.Supp.2d 876, 889 (S.D. Ohio 2007).

she was 18. (Id. at 17–19.) Defendant correctly maintains that Plaintiff’s contentions of error

lack merit. (Def.’s Mem. in Opp’n, 4–11, ECF No. 11.)

II. THE ALJ’S DECISION

The ALJ issued her decision on August 26, 2021, finding that Plaintiff was not disabled

within the meaning of the Social Security Act. (R. 10–24.) The ALJ initially explained that to be

entitled to CDB, Plaintiff must have a disability that began before she reached the age of 22. (R.

13.) At step one of the sequential evaluation process,4 the ALJ found that Plaintiff never engaged

in substantial gainful activity. (R. 15.) At step two, the ALJ found that, before she was 22,

Plaintiff’s borderline intellectual functioning (“BIF”) constituted a severe impairment. (Id.) At

step three, the ALJ further found that, before she was 22, Plaintiff did not have a severe

4 Social Security Regulations require ALJs to resolve a disability claim through a five-step

sequential evaluation of the evidence. See 20 C.F.R. §§ 404.1520(a)(4). Although a dispositive

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th

Cir. 2007), if fully considered, the sequential review considers and answers five questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or equal the

criteria of an impairment set forth in the Commissioner’s Listing of Impairments, 20

C.F.R. Subpart P, Appendix 1?

4. Considering the claimant’s residual functional capacity, can the claimant perform his

or her past relevant work?

5. Considering the claimant’s age, education, past work experience, and residual

functional capacity, can the claimant perform other work available in the national

economy?

See 20 C.F.R. §§ 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir.

2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

impairment or combination of impairments that met or medically equaled a listed impairment,

including, specifically, Listing 12.05—intellectual disorder. (R. 16.)

The ALJ then set forth Plaintiff’s residual functional capacity5 (“RFC”) as follows:

After careful consideration of the entire record, the undersigned finds that, prior to

attaining age 22, the claimant had the residual functional capacity to perform a full

range of work at all exertional levels but with the following nonexertional

limitations: the claimant could understand, remember, and carry out simple

instructions.

(R. 18.)

At step four, the ALJ determined that Plaintiff had no past relevant work. (R. 20.) At step

five, the ALJ relied on testimony from a vocational expert (“VE”) to determine that in light of

her age, education, work experience, and RFC, jobs existed in significant numbers in the national

economy that Plaintiff could perform including the representative occupations of cleaner II,

garment bagger, and box bender. (R. 20–21.) The ALJ therefore concluded that Plaintiff had not

been under a disability, as defined in the Social Security Act, before she turned 22 in June 1995.

(R. 21.)

III. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C.

§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is

5 A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.” 20

C.F.R. §§ 404.1545(a)(1); 416.945(a)(1).

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“take into account whatever in the record fairly detracts from [the] weight” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)).

Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court defers to

that finding ‘even if there is substantial evidence in the record that would have supported an

opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v.

Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the

substantial evidence standard, “a decision of the Commissioner will not be upheld where the SSA

fails to follow its own regulations and where that error prejudices a claimant on the merits or

deprives the claimant of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746

(6th Cir. 2007).

IV. ANALYSIS

To be entitled to CDB, Plaintiff must show that she was dependent upon a deceased

parent who received benefits and that she herself has a disability that began before she reached

the age of 22. See 20 C.F.R. § 404.350(a)(5). The parties appear to agree that Plaintiff was

dependent upon a deceased parent who received benefits. Defendant additionally urges, and

Plaintiff does not dispute, that Plaintiff must also show that she was disabled during the four-year

period between her eighteenth and twenty-second birthdays (i.e., from June 1991 until June of

1995). (Def.’s Mem. in Opp’n, 4, ECF No. 11.) Plaintiff, however, disputes the ALJ’s finding

that she was not disabled during that time frame.

A. The ALJ’s Step 3 Determination and Listing 12.04

Plaintiff first targets the ALJ’s step-three determination. In particular, she contends that

the ALJ erred by failing to consider if she met the criteria for Listing 12.04 during the relevant

period (i.e., June 1991 through June 1995). This contention of error lacks merit.

At step three, a claimant has the burden of showing that she has an impairment or

combination of impairments that meets or medically equals the criteria of an impairment listed in

20 C.F.R. § 404, Subpart P, Appendix 1. Foster v. Halter, 279 F.3d 348, 345 (6th Cir. 2001); 20

C.F.R. § 404.1520(a)(4)(iii). If claimant meets all criteria for a listing, she is disabled; otherwise,

an ALJ must proceed to the next step in the sequential evaluation process. 20 C.F.R. §

404.1520(d)–(e).

Although the regulations require an ALJ to determine if a claimant meets or equals a

listed impairment, they “do not require the ALJ to address every Listing” or to “discuss listings

that the applicant clearly does not meet.” Sheeks v. Comm’r of Soc. Sec., 544 Fed. App’x 639,

641 (6th Cir. 2013). Instead, an ALJ should consider a listing if the record “‘raise[s] a substantial

question as to whether [the claimant] could qualify as disabled’ under a listing.” Id.

at 641 (citing Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990)). But “[a] claimant must do

more than point to evidence on which the ALJ could have based his finding to raise a ‘substantial

question’ as to whether he satisfied a listing.” Smith-Johnson v. Comm’r of Soc. Sec., 579 F.

App’x 426, 432 (6th Cir. 2014) (quoting Sheeks, 544 F. App’x. at 641–42). “Rather, the claimant

must point to specific evidence that demonstrates [s]he reasonably could meet or equal every

requirement of the listing.” Id. (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). “Absent

such evidence, the ALJ does not commit reversible error by failing to evaluate a listing at Step

Three.” Id. at 433.

Here, the ALJ considered Plaintiff’s impairments and determined that during the relevant

period, they did not, singly or in combination, meet the criteria for Listing 12.05—intellectual

disorder. (R. 16.) As Plaintiff correctly notes, however, the ALJ did not expressly consider if she

met the criteria for Listing 12.04—affective disorders. Nevertheless, the ALJ did not err by

failing to consider Listing 12.04 because Plaintiff fails to point to record evidence demonstrating

that she could meet or equal its requirements during the relevant period.

1. Paragraph A of Listing 12.04

To meet Listing 12.04, Plaintiff must show that the requirements of Paragraph A(1) or

(A)(2) of that listing are satisfied. Plaintiff appears to argue that she satisfied the requirements

for Paragraph A(1) during the relevant period. (Pl.’s Statement of Errors 9–10, ECF No. 11.) To

satisfy the Paragraph A(1) criteria, Plaintiff must point to evidence of medical documentation of

a depressive disorder, characterized by five or more of the following:

a. Depressed mood;

b. Diminished interest in almost all activities;

c. Appetite disturbance with changes in weight;

d. Sleep disturbance;

e. Observable psychomotor agitation or retardation

f. Decreased energy;

g. Feelings of guilt or worthlessness;

h. Difficulty concentrating or thinking; or

i. Thoughts of death or suicide.

20 C.F.R. pt. 404, Subpt. P, App. 1 § 12.04(A)(1).

Plaintiff does not, however, point to medical documentation of the Paragraph A(1)

criteria during the relevant period. Instead, she notes that in January 1996, approximately six

months after the relevant period ended, she was found to have met Listing 12.04.6 (Pl.’s

Statement of Errors 10, 15–16, ECF No. 11.) Plaintiff reasons that although it is possible that she

did not have an affective disorder until she developed one that was of listing-level severity in

January 1996, it is more likely that her issues developed before that. (Id. at 10.) But as Defendant

correctly explains, that is not enough. Plaintiff bears the burden of demonstrating that she met all

the requirements for Listing 12.04, including Paragraph A, during the relevant period. Evidence

of a listing-level impairment after the relevant period is insufficient unless Plaintiff demonstrates

that it reflects circumstances during the relevant period. Plaintiff has failed to make such a

showing.

Plaintiff relatedly argues that the ALJ erred by “ignoring” evidence that she met Listing

12.04 after the relevant period. (Pl.’s Statement of Errors 9–10, 15–16, ECF No. 11.) An ALJ is

not required, however, to “discuss every piece of evidence in the record to substantiate [her]

decision.” Conner v. Comm’r of Soc. Sec., 658 F. App’x 248, 254 (6th Cir. 2016) (citing

Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004)); see also Dykes ex rel.

Brymer v. Barnhart, 112 F. App’x 463, 467–68 (6th Cir. 2004) (“Although required to develop

the record fully and fairly, an ALJ is not required to discuss all the evidence submitted, and an

ALJ’s failure to cite specific evidence does not indicate that it was not considered.” (citations

omitted)). In any event, the ALJ’s determination does not indicate that she ignored Plaintiff’s

6 The record reflects that Plaintiff’s primary diagnosis code at that time was 2960, for affective

disorders. (R. 50.)

listing-level impairment after the relevant period. The ALJ explicitly noted Plaintiff’s argument

that she was “very likely disabled” during the relevant period, and specifically cited counsel’s

letters discussing that she was found to have met Listing 12.04 six months after the relevant

period ended. (R. 19.)

Plaintiff also argues that evidence from before the relevant period might show that she

was disabled during the relevant period. For instance, Plaintiff argues that she received benefits

before she turned 18. (Pl.’s Statement of Errors 10, 9–10, ECF No. 11.) But the ALJ explained at

the hearing that there was no record that Plaintiff received benefits because of her own disability

prior to 1996, and that benefits Plaintiff received as a child were instead based instead on

Plaintiff’s father’s record. (R. 45.)

Plaintiff also points to other evidence from before the relevant period and argues that it

might show that she had an affective disorder as early as 1989. (Pl.’s Statement of Errors 10, 10–

11, ECF No. 11.) But again, Plaintiff must demonstrate that evidence from before the relevant

period reflected circumstances during the relevant period. Plaintiff has not done so. Moreover,

even if the record might show that Plaintiff possibly had an affective disorder before the relevant

period, it also shows that she appeared to improve as she approached the age of eighteen, when

the relevant period started. For example, the record reflects that Plaintiff was placed in a severe

behaviorally handicapped (“SBH”) program at some point. (R. 803.) But in Spring 1987, a

school psychologist noted that Plaintiff’s functioning was within average range, which indicated

that her behavior was usually appropriate, and that Plaintiff was observed to be consistently on

task, behaving according to rules, and behaving more appropriately than a majority of her

classmates. (R. 425, 923.) Notes from October 1987, indicate that although Plaintiff had strong

withdrawal tendencies, she reportedly had no clinical depression. (R. 827, 883.) An evaluator

noted in May 1988, that Plaintiff had no evidence of depression. (R. 255.) In June 1988, a school

evaluation team determined that Plaintiff no longer met eligibility requirements for SBH classes,

and that she should be exited from them. (R. 817, 1069.) Records from the following academic

year confirm that Plaintiff was no longer enrolled in SBH classes. (R. 803, 809.) In February

1990, Plaintiff was enrolled in developmentally handicapped classes. (R. 1061.) But in June of

1990, a school evaluation team found that although Plaintiff appeared to need special education

services, she did not have a severe behavioral handicap, and that her emotional status was not a

primary basis for her academic deficits. (R. 723, 1113.) In January 1991, approximately five

months before the relevant period began, a school evaluation team again found that Plaintiff did

not have a severe behavioral handicap and that her emotional status was not a primary basis for

her academic deficits. (R. 785.)

Likewise, the handful of records from the relevant period fail to support that Plaintiff had

a disabling affective disorder during that time. The record, for instance, shows that in July 1991,

Plaintiff was living independently with an adult female friend and that she assisted her friend by

providing childcare and household help. (R. 1462.) In January 1992, Plaintiff presented with

only some “mild depression.” (R. 1464.) Plaintiff began home instruction after she became

pregnant and developed edema. (R. 765, 1053, 1055.) In September 1992, she returned from

home instruction to a developmentally handicapped classroom. (R. 729.) But she transferred to a

vocational work adjustment program for the 1993–1994 school year. (R. 717, 719.) Although

Plaintiff had failing grades that year, nothing in the record suggests that her lack of academic

achievement was related to disabling depression.

In short, Plaintiff has not identified record evidence from before, during, or after the

relevant period that shows that the Paragraph A(1) criteria was satisfied during the relevant

period. Nor does the Court find any such evidence after independent review. Therefore, the ALJ

did not commit reversible error by failing to consider Listing 12.04.

2. Paragraphs B and C of Listing 12.04

Plaintiff’s claim fails because she does not show that during the relevant period, she

could met Paragraph A(1) of Listing 12.04. Her claim fails for a second reason. To meet that

listing, Plaintiff must also point to evidence that she meets the functional limitations in

Paragraph B or Paragraph C of that listing. Although the ALJ did not consider if Plaintiff met

Listing 12.04, she did consider if Plaintiff met Listing 12.05. Paragraph B is the same for both

listings.

Plaintiff challenges the ALJ’s Paragraph B assessment. (Pl.’s Statement of Errors 10, 11–

15, ECF No. 11.) To meet Paragraph B, Plaintiff must show that her affective disorder resulted in

extreme limitations in one, or marked limitations in two of the following areas of mental

functioning:

1. Understand, remember, or apply information . . .

2. Interact with others . . . .

3. Concentrate, persist, or maintain pace . . . .

4. Adapt or manage oneself . . . .

20 C.F.R. pt. 404, Subpt. P, App. 1 § 12.04(B).

Here, the ALJ determined that Plaintiff had only a moderate limitation in understanding,

remembering, or applying information. (R. 17.) The ALJ explained that she made that

determination, in part, because Plaintiff’s past education records showed that she exhibited an

ability to ask and answer questions. (Id.) Substantial evidence supports that determination—the

record reflects that Plaintiff was able to take standardized tests. (See e.g., R. 253, 283, 285, 293,

307, 481, 547, 797, 825, 913 919.) The ALJ also determined that Plaintiff had only mild limits in

this area of mental functioning because the record made no mention of any chronic issues with

Plaintiff’s short- or long-term memory. (R. 17.) Substantial evidence supports that determination

too—Plaintiff does not point to, and the Court has not found, records documenting that Plaintiff

had chronic memory issues during the relevant period.

The ALJ also determined that Plaintiff had only a mild limitation in interacting with

others. (R.17.) The ALJ made this determination, in part, because records showed that Plaintiff

was cooperative, demonstrated good interest and motivation, and conversed effectively. (Id.)

Substantial evidence supports that determination. In January 1990, an evaluator wrote that

Plaintiff was a cooperative student who demonstrated good interest and motivation, and that

although Plaintiff was somewhat soft-spoken, she was able to converse effectively about issues

she had at school. (R. 799.) Other educational evaluators similarly noted that Plaintiff was

cooperative (R. 261, 289, 293, 305); cooperative and worked with a minimum of coaxing (R.

921); cooperative and tried most of the time (R. 375, 377); cooperative, well-motivated, and

made good effort (R. 277, 279, 281, 267); or that Plaintiff cooperated well and worked hard (R.

315). Evaluators additionally noted that Plaintiff easily established or maintained rapport. (R.

261, 293, 921, 434). In 1987, an evaluator also noted that Plaintiff had no difficulty getting along

with her peers. (R. 425.)

The ALJ further determined that Plaintiff had only a moderate limitation in

concentration, persistence, or pace. (R. 17.) The ALJ made this determination, in part, because

records showed that Plaintiff scored a 78 on her IQ tests, which put her in the borderline range of

functioning. (Id.) Substantial evidence supports that determination. The record reflects that

testing in 1990 resulted in a full scale IQ score of 78. (R. 797.)

In addition, the ALJ determined that Plaintiff also had only a mild limitation in adapting

or managing herself. (R. 17.) The ALJ made this determination, in part, because records showed

that during the relevant period, Plaintiff lived at times on her own and with her children. (Id.)

Substantial evidence supports that determination too. The record reflects that Plaintiff lived

independently for at least some time during the relevant period. (R. 1462.)

Plaintiff does not challenge any of these record-based reasons that the ALJ provided for

her Paragraph B determinations. Instead, Plaintiff points out that the ALJ noted that Plaintiff’s

behavior during the 2021 hearing demonstrated that she only had mild or moderate limits in

these areas of mental functioning. Plaintiff argues that this was error because her abilities during

that hearing do not shed light on her condition during the relevant period. The Court, however,

notes that even if the ALJ’s hearing-related observations are too attenuated to reliably cast light

on Plaintiff’s status during the relevant period, the ALJ provided other record-based reasons for

her Paragraph B determinations. And Plaintiff does not challenge those reasons.

Moreover, Plaintiff has not pointed to record evidence that she had marked or extreme

limitations in any of these areas of mental functioning during the relevant period. Therefore, she

has failed to demonstrate that the Paragraph B criteria was satisfied during the relevant period.

And the Court has not independently located such evidence. Accordingly, the Court finds that the

ALJ did not commit reversible error by failing to consider Listing 12.04.

B. The ALJ’s Analysis of the VA’s Determination

Plaintiff next argues that the ALJ erred by failing to properly consider the VA’s disability

rating. This contention of error lacks merit.

Under the regulations that govern claims like this one, filed on or after March 27, 2017,

certain evidence is deemed “inherently neither valuable nor persuasive to the issue of whether [a

claimant] is disabled . . . . ” 20 C.F.R. § 404.1520b(c). Such evidence includes disability findings

and determinations by other governmental agencies. Id. § 404.1520b(c)(1). As to how such

evidence is assessed, the regulations further provide as follows:

Other governmental agencies and nongovernmental entities—such as

the Department of Veterans Affairs . . . make disability . . . and other benefits

decisions for their own programs using their own rules. Because a decision by any

other governmental agency . . . about whether you are disabled . . . or entitled to

any benefits is based on its rules, it is not binding on us and is not our decision

about whether you are disabled or blind under our rules. Therefore, in claims filed

(see § 404.614) on or after March 27, 2017, we will not provide any analysis in our

determination or decision about a decision made by any other governmental agency

. . . about whether you are disabled . . . or entitled to any benefits. However, we will

consider all of the supporting evidence underlying the other governmental agency

or nongovernmental entity’s decision that we receive as evidence in your claim in

accordance with § 404.1513(a)(1) through (4).

20 C.F.R. § 404.1504.

Here, the ALJ discussed the VA’s disability rating determination as follows:

The claimant’s representative indicated that through her survivors benefits the

Veterans Administration opined on October 30, 2020, the claimant had been

permanently incapable of self-support prior [to her eighteenth birthday] (Exhibit 4F

p. 4). However, the undersigned notes that decisions by other government agencies

are inherently neither valuable nor persuasive. Moreover, there was no indication

of what evidence they reviewed in coming to their decision.

(R. 19.) As this discussion demonstrates, the ALJ correctly explained that decisions by other

government agencies are neither inherently valuable or persuasive. § 404.1520b(c)(1). Plaintiff’s

arguments to the contrary lack merit.

Plaintiff correctly contends, however, that the ALJ was required to consider all the

evidence that the VA considered to the extent SSA also received it as evidence. Plaintiff further

notes that the VA indicated that it considered records from Cincinnati Children’s Hospital

Medical Center, and that this same evidence was provided to SSA. (R. 1452–53, 1450.) Thus,

Plaintiff correctly asserts that the ALJ erred when she explained that the record did not indicate

what evidence the VA considered.

Nevertheless, the at-issue records primarily consist of hand-written notes from counseling

appointments that occurred before the relevant period. (R. 1457–1466.) Only four appointments

took place during the relevant period (R. 1462–1465), and one of them was an appointment

related to reproductive health education (R. 1466). Moreover, the records show that in July 1991,

Plaintiff was living independently with a friend who she assisted (R. 1462) and that she

presented with only mild depression in January 1992 (R. 1464). In short, Plaintiff has failed to

demonstrate, and the Court has not found, that these records in any way demonstrate that

Plaintiff had a disabling affective disorder during the relevant period. Accordingly, any error the

ALJ may have made about the records considered by the VA is harmless.

V. CONCLUSION

For all the foregoing reasons, the Court AFFIRMS the Commissioner’s non-disability

determination and OVERRULES Plaintiff’s Statement of Errors.

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE