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Panas v. Berryhill

United States District Court, D. New Mexico

February 7, 2018

IRENE PANAS, on behalf of M.E.M., a minor, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         This 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.

         I. INTRODUCTION

         Administrative 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.

         II. DETERMINING DISABILITY FOR CHILDREN

         An 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.”[1] 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).

         “In 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 functioning are:

(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).

         The 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. § 416.926a(e)(3)(i).

“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.

Id.

         When 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).

         III. PROCEDURAL HISTORY

         Plaintiff 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.[2] 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.

         The 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.

         Pertinent 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.

         Plaintiff 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).

         IV. LEGAL STANDARD

         This 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).

         V. ANALYSIS

         Plaintiff 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.

         A) The ALJ's findings as to the effects of M.E.M.'s impairments on the domains of function are supported by substantial evidence.

         1. Acquiring and Using Information

         The 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 employer).

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, morning/night.
(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).

         Plaintiff 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.

         As to 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 medical opinion.

20 C.F.R. § 416.927(c)(6).

         Here, 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. Id.

         The ALJ 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 ...


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