United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
matter comes before the Court on Plaintiff Irene Panas'
Motion to Reverse and Remand for Payment of Benefits, or in
the Alternative, for Rehearing with Supporting Memorandum
(Doc. 22), filed September 5, 2017. Pursuant to 28
U.S.C. § 636(b), this matter has been referred to me for
a recommended disposition. Doc. 24. Having reviewed
the parties' submissions, the relevant law, and the
relevant portions of the Administrative Record, the Court
recommends that Plaintiff's Motion be denied.
Law Judge Barry O'Melinn (“the ALJ”)
determined that Plaintiff's seventeen year old daughter,
M.E.M., is not disabled under the Social Security Act. In
reaching this conclusion, the ALJ found that M.E.M. is less
than markedly impaired in the six domains of functioning
applicable to children's cases, and found less than
credible statements offered by Plaintiff and M.E.M.'s
father in support of her application. Plaintiff now appeals,
asserting that the ALJ's findings as to the functional
domains were unsupported by substantial evidence and that his
findings as a whole are contrary to law. For the reasons that
follow, the Court disagrees.
DETERMINING DISABILITY FOR CHILDREN
individual under the age of eighteen is disabled for the
purposes of receiving Supplemental Security Income benefits
under the Social Security Act if she has “a medically
determinable physical or mental impairment, which results in
marked and severe functional limitations, and which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months[, ]” 42 U.S.C. § 1382c(a)(3)(C)(i); and she
is not engaged in “substantial gainful
activity.” 42 U.S.C. § 1382c(a)(3)(C)(ii);
see also 20 C.F.R. § 416.906 (basic definition
of disability for children). The Commissioner uses a
three-step sequential evaluation process to determine whether
an individual under the age of 18 is disabled. See
20 C.F.R. § 416.924(a); see also Briggs ex rel.
Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir.
2001). At Step One, the ALJ must ensure that the child is not
engaged in substantial gainful activity. Id. At Step
Two, the ALJ examines whether “the child has an
impairment or combination of impairments that is
severe.” Briggs, 248 F.3d at 1237. If there
are no severe impairments, the child is not disabled. 20
C.F.R. § 416.924(c). Finally, at Step Three, the ALJ
determined whether the child's impairment(s) “meets
or equals an impairment listed in Appendix 1, Subpart P of 20
C.F.R. Pt. 404.” Briggs, 248 F.3d at 1237; 20
C.F.R. § 416.924(d).
making the third determination-whether a child's
impairment meets or equals a listed impairment-the ALJ must
consider whether the impairment, alone or in combination with
another impairment, ‘medically equals, or functionally
equals the listings.'” Briggs, 248 F.3d at
1237 (citing 20 C.F.R. § 416.924(a)). If a child's
impairments do not “medically” equal the
listings, see 20 C. F. R. § 416.926, they may
still “functionally” equal a listing.
See 20 C.F.R. § 416.926a. To
“functionally equal the listings” a child's
“impairment(s) must be of listing-level severity; i.e.,
it must result in ‘marked' limitations in two
domains of functioning or an ‘extreme' limitation
in one domain[.]” 20 C.F.R. § 416.926a.
“Domains are broad areas of functioning intended to
capture all of what a child can or cannot do.” SSR
09-1P, 2009 WL 396031 at *1. The six applicable domains of
(i) Acquiring and using information;
(ii) Attending and completing tasks;
(iii) Interacting and relating with others;
(iv) Moving about and manipulating objects;
(v) Caring for yourself; and,
(vi) Health and physical well-being.
20 C.F.R. § 416.926a(b)(1)(i)-(vi).
Administration will determine that a child has a
“marked” limitation in a domain when her
“impairment(s) interferes seriously with [her] ability
to independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.925a(e)(2)(i).
“'Marked' limitation also means a limitation
that is ‘more than moderate' but ‘less than
extreme.' It is the equivalent of the functioning we
would expect to find on standardized testing with scores that
are at least two, but less than three, standard deviations
below the mean.” Id. The Administration will
find that a child has an “extreme” limitation in
a domain when her “impairment(s) interferes very
seriously with [her] ability to independently initiate,
sustain, or complete activities.” 20 C.F.R. §
“Extreme” limitation also means a limitation that
is “more than marked.” “Extreme”
limitation is the rating we give to the worst limitations.
However, “extreme limitation” does not
necessarily mean a total lack or loss of ability to function.
It is the equivalent of the functioning we would expect to
find on standardized testing with scores that are at least
three standard deviations below the mean.
the Administration considers whether a child has
“marked” or “extreme” limitations in
any domain, it examines “all the information [it has]
in [the child's] case record about how [the child's]
functioning is limited because of [her] impairment(s), and
[it] compare[s] [the child's] functioning to the typical
functioning of children [her] age who do not have
impairments.” 20 C.F.R. § 416.926a(f)(1). The
Administration also relies on the general description of the
domains stated in the regulations to help it decide whether a
child has limitations in any given domain and whether these
limitations are “marked” or
“extreme.” 20 C.F.R. § 416.926a(f)(2). These
domain descriptions include examples of some activities
typical of children in various age groups and some functional
limitations the Administration may consider. 20 C.F.R. §
416.926a(f)(3). The domains pertinent to this appeal will be
discussed in detail below. However, it is sufficient to state
that M.E.M. was an adolescent for all purposes relevant to
this appeal. See, e.g., 20 C.F.R. §
416.926a(g)(v) (defining adolescents as individuals ranging
from the age of 12 to attainment of age 18).
filed an application with the Social Security Administration
on August 9, 2013, with a protective filing date of August 5,
2013, seeking supplemental security income benefits on
M.E.M.'s behalf. AR at 136-145. Plaintiff alleged
that M.E.M. became disabled on March 1, 2007, due to a
learning disability, mental delay, and Post Traumatic Stress
Disorder. AR at 55. Plaintiff testified that these
impairments cause M.E.M. to struggle and have since she was a
toddler, and that she is concerned that M.E.M. is about four
years behind and is very shy. See AR at 45.
Administration denied M.E.M.'s application initially and
upon reconsideration, and Plaintiff requested a de
novo hearing before an administrative law judge.
AR at 54-98. ALJ O'Melinn held an evidentiary
hearing on December 4, 2015. AR at 33-53. On March
4, 2016, he issued an unfavorable decision, finding that
M.E.M. is not disabled as defined in the Social Security Act.
AR at 10-32.
here, at step one of the sequential evaluation process, the
ALJ found that M.E.M. has not engaged in substantial gainful
activity since her application date. AR at 16. At
step two, he determined that M.E.M. has the following severe
impairments: “Anxiety, Affective Disorder, Learning
Disorder, Obesity, and Speech and Language.”
AR at 16. At the third step, the ALJ concluded that
M.E.M. “does not have an impairment or combination of
impairments that meets or medically equals the severity of
the listed impairments[.]” AR at 16-17. The
ALJ also found that M.E.M.'s impairments do not
functionally equal the severity of the listings because she
“does not have an impairment of combination of
impairments that result in either ‘marked'
limitations in two domains of functioning or
‘extreme' limitation in one domain of
functioning.” AR at 18-27. As such, the ALJ
determined that M.E.M. is not disabled as a matter of law,
and denied her supplemental security income benefits.
AR at 27.
filed a Request for Review with the Appeals Council, which
the Council denied on January 26, 2017. AR at 1-8.
As such, the ALJ's decision became the final decision of
the Commissioner. See Doyal v. Barnhart, 331 F.3d
758, 759 (10th Cir. 2003). This Court now has jurisdiction to
review the decision pursuant to 42 U.S.C. § 405(g) and
20 C.F.R. §§ 416.1481, 422.210(a).
Court reviews the Commissioner's decision to determine
whether she applied the correct legal standards and whether
her factual findings are supported by substantial evidence.
Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175
(10th Cir. 2014). The Court must “consider whether the
ALJ followed the specific rules of law that must be followed
in weighing particular types of evidence in disability cases,
but [it] will not reweigh the evidence or substitute [its]
judgment for the Commissioner's” when the
Commissioner's decision is supported by substantial
evidence. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007) (quotation omitted). “Substantial evidence
is more than a scintilla, but less than a
preponderance.” Knight, 756 F.3d at 1175
(quotation omitted). It “is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Briggs, 248 F.3d at 1237
(quotation omitted). 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.'” Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.
2007)). “A decision is not based on substantial
evidence if it is overwhelmed by other evidence in the
record[.]” Hamlin v. Barnhart, 365 F.3d 1208,
1214 (10th Cir. 2004) (quotation omitted).
argues that “[t]he ALJ made several errors in assessing
M.E.M.'s functioning under the domains used to assess
functioning for children[.]”Doc. 22 at 1.
Specifically, she argues that “M.E.M. has at least
marked impairments in three domains: her ability to acquire
information; attention and completing tasks; and health and
well-being.” Id. at 6. Additionally, Plaintiff
argues that the ALJ failed to consider the “whole
child” in denying M.E.M. benefits, failed to compare
M.E.M.'s functioning to non-disabled children, and
“did not properly assess parental testimony, all of
which were legal errors requiring remand.” Doc.
22 at 1-2. Having meticulously reviewed the record, the
Court finds no reversible error.
The ALJ's findings as to the effects of M.E.M.'s
impairments on the domains of function are supported by
Acquiring and Using Information
functional domain of acquiring and using information
considers how well a child acquires or learns information and
how well she uses the information she has learned. 20 C.F.R.
§ 416.926a(g). The regulations provide the following age
group descriptors for adolescents:
In middle and high school, you should continue to demonstrate
what you have learned in academic assignments (e.g.,
composition, classroom discussion, and laboratory
experiments). You should also be able to use what you have
learned in daily living situations without assistance (e.g.,
going to the store, using the library, and using public
transportation). You should be able to comprehend and express
both simple and complex ideas, using increasingly complex
language (vocabulary and grammar) in learning and daily
living situations (e.g., to obtain and convey information and
ideas). You should also learn to apply these skills in
practical ways that will help you enter the workplace after
you finish school (e.g., carrying out instructions, preparing
a job application, or being interviewed by a potential
20 C.F.R. § 416.926a(g)(2)(v). Additionally, the
regulations provide the following examples of limited
functioning in acquiring and using information:
(i) You do not demonstrate understanding of words about
space, size, or time; e.g., in/under, big/little,
(ii) You cannot rhyme words or the sounds in words.
(iii) You have difficulty recalling important things you
learned in school yesterday.
(iv) You have difficulty solving mathematics questions or
computing arithmetic answers.
(v) You talk only in short, simple sentences and have
difficulty explaining what you mean.
20 C.F.R. § 416.926a(g)(3)(i)-(v).
argues that M.E.M.'s impairment in this domain is at
least marked, but likely is extreme based on both
standardized testing and teacher evaluations. Doc.
22 at 7. The ALJ, on the other hand, found that M.E.M.
has “less than marked limitation in this area in light
of the weight [he] accorded to the opinions of Drs. Gucker,
Aase, Brady, and Blacharsh, as corroborated by the
observations of her teachers and school records.”
AR at 23. Plaintiff argues that this analysis is
error “for at least two reasons.” Doc.
22 at 14. First, she argues that Drs. Gucker, Aase,
Brady, and Blacharsh are all non-examining doctors, and, as
such, their opinions are entitled to the least amount of
weight of any opinion. Id. Second, Plaintiff argues
that the ALJ erred “because he failed to discuss the
teacher reports that show marked limitations in this domain,
or the findings from Drs. Lang and Krueger.”
Id. at 15. The Court rejects both arguments.
Plaintiff's first argument, the regulations support the
ALJ's decision to rely on the non-examining doctors'
opinions so long as they were weighed appropriately.
“Federal or State agency medical or psychological
consultants are highly qualified and experts in Social
Security disability evaluation.” 20 C.F.R. §
416.913a(b)(1). As such, as with any other medical opinion,
ALJs must weigh evidence from these sources under 20 C.F.R.
§ 416.927(c). Id. Under that provision, the
Administration considers the following factors in deciding
the weight to give to any medical opinion: (1) the examining
relationship; (2) the treatment relationship; (3) the
supportability of the opinion; (4) the consistency of the
opinion with the record as a whole; (5) the specialization of
the medical source; and (6) “other factors …
which tend to support or contradict the medical
opinion.” 20 C.F.R. § 416.927(c)(1)-(6).
For example, the amount of understanding of our disability
programs and their evidentiary requirements that a medical
source has, regardless of the source of that understanding,
and the extent to which a medical source is familiar with the
other information in your case record are relevant factors
that we will consider in deciding the weight to give to a
20 C.F.R. § 416.927(c)(6).
the ALJ gave Drs. Gucker and Aase's opinion, rendered at
the initial stage of administrative review, AR at
61, “significant weight, ” because they
“reviewed the evidence and are familiar with Social
Security disability standards.” AR at 21.
Accordingly, he adopted their findings that M.E.M. is less
than markedly limited in the domain of acquiring and using
information (and all of the other domains of function).
AR at 21. Likewise, the ALJ gave Drs. Brady and
Blacharsh's opinion (rendered at reconsideration),
AR at 73, “some weight” because, based
on his review of the evidence as a whole, they understated
M.E.M.'s limitations in some domains. AR at 21.
However, he adopted their finding that she is less than
markedly impaired in acquiring and using information.
was entitled to consider and rely on these opinions. See
Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007)
(rejecting the argument that the ALJ “placed undue
weight on the opinion of a State agency physician who did not
examine her” because “[t]he non-examining
physician's opinion is an acceptable medical source,
which the ALJ was entitled to consider.”). Plaintiff
argues, however, that there are opinions and school records
dated after these opinions were issued, rendering them stale.
Doc. 22 at 14. However, as the Commissioner
correctly notes, nothing in the school records that post-date
these opinions undermines the non-examining doctor's
findings. See Doc. 27 at 10 (citing Tarpley v.
Colvin, 601 F. App'x 641, 644 (10th Cir. 2015)).
Indeed, in Tarpley, the Tenth Circuit made clear
that there is nothing improper about ...