United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Magistrate Judge Jerry H.
Ritter's Proposed Findings and Recommended Disposition
(“PFRD”), filed February 7, 2018 (Doc.
30), Plaintiff's Objections to Magistrate
Judge's February 7, 2018 Proposed Findings and
Recommended Disposition (Doc. 31), filed February
20, 2018, and Defendant's Response to Plaintiff's
Objections, filed March 6, 2018 (Doc. 32). The Court
will adopt the PFRD in full. Plaintiff's objections fail
to demonstrate that the Administrative Law Judge
(“ALJ”) assigned to her case committed reversible
error in denying M.E.M.'s application for Supplemental
Security Income benefits, and Plaintiff has failed to
convince the Court that the Magistrate Judge erred in
affirming his decision.
STANDARD OF REVIEW
resolving objections to a magistrate judge's proposal,
“the district judge must determine de novo any
part of the magistrate judge's disposition that has been
properly objected to. The district judge may accept, reject,
or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P 72(b)(3); see
also 28 U.S.C. § 636(b)(1)(C).
Tenth Circuit requires a “district court to consider
relevant evidence of record and not merely review the
magistrate judge's recommendation, ” when
conducting a de novo review of a party's timely,
specific objections to the magistrate judge's report.
In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995).
A district court need not, however, “make any specific
findings; the district court must merely conduct a de
novo review of the record.” Garcia v. City of
Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000).
applied for benefits on behalf of her daughter, M.E.M., on
the grounds that she is disabled due to a learning
disability, mental delay, and post-traumatic stress disorder
(“PTSD”). Administrative Record
(“AR”) at 55. The ALJ who denied her
claim agreed that, based on his review of the record, M.E.M.
has the severe impairments of Anxiety, Affective Disorder,
Learning Disorder, Obesity, and Speech and Language.
AR at 16. However, the ALJ found that M.E.M.'s
impairments neither meet nor medically equal the severity of
the listed impairments. AR at 16-17. He likewise
found that M.E.M.'s impairments do not functionally equal
the severity of the listings. AR at 18-27. As such,
he denied benefits.
appealed to this Court, and the undersigned referred the case
to the Magistrate Judge to issue Proposed Findings and a
Recommended Disposition as to the ultimate disposition of the
case. Doc. 24. Plaintiff's arguments before the
Magistrate Judge are largely repeated in her objections,
addressed below. Suffice to say, in his 28-page PFRD, the
Magistrate Judge rejected Plaintiff's claims of error,
reasoning that the ALJ's findings were tethered to
substantial evidence and that the correct legal standards
were applied to M.E.M.'s case. See Doc. 30.
objections are focused on the third step of the evaluation an
ALJ must engage in in children's cases - wherein he must
determine whether the child's impairments
“functionally” equal a
“listing.” At this step in the analysis, an ALJ is
required to assess six “domains of function.”
See 20 C.F.R. § 416.925a(e)(2)(i). If a
child's limitations result in “marked”
limitations in two domains, or an “extreme”
limitation in one domain, the child will have demonstrated
listing-level severity, and benefits will issue. 20 C.F.R.
§ 416.925(b)(2)(ii). In this case, the ALJ found less
than marked impairment in all six domains, and he denied
benefits accordingly. See AR at 26-31.
Plaintiff's appeal asserts that the ALJ erred in his
assessment of three domains: acquiring and using information;
attending and completing tasks; and health and physical
well-being. See Doc. 22 at 7-20. Plaintiff further
claims that the ALJ committed errors applicable to his
findings in all domains: by failing to consider the
“whole child;” by failing to compare M.E.M. to
nondisabled children; and, finally, by improperly assessing
the credibility of M.E.M.'s parents. See Id. at
20-25. The Court addresses each issue in turn.
Objections regarding the domain of acquiring and using
Magistrate Judge set forth: “[t]he 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. Doc. 30 at 7 (citing 20
C.F.R. § 416.926a(g)). The ALJ found that M.E.M. has a
less than marked impairment in this domain, relying on 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. The ALJ, in turn, gave “significant
weight” to Drs. Gucker and Aase's opinion and
“some weight” to Drs. Brady and Blacharsh's.
AR at 21. All four of these doctors opined that
M.E.M. is less than markedly impaired in the domain of
acquiring and using information. AR at 21, 59-61,
71-73. The Magistrate Judge found that the ALJ “was
entitled to consider and rely on these opinions.”
Doc. 30 at 9 (citing Flaherty v. Astrue,
515 F.3d 1067, 1071 (10th Cir. 2007)). Plaintiff objects to
the Magistrate Judge's finding for several reasons.
Plaintiff accuses the Magistrate Judge of “backwards
reasoning, ” insofar as “[t]he ALJ must consider
the treatment evidence first, and then must decide whether
that evidence is consistent with the non-examining
evidence.” Doc. 31 at 1. Plaintiff does not
distinguish or even mention the Magistrate Judge's
reliance on Flaherty, where the Tenth Circuit
explicitly held that “[t]he non-examining
physician's opinion is an acceptable medical source,
which the ALJ was entitled to consider.”
Flaherty. 515 F.3d at 1071. Instead, Plaintiff cites
to Goatcher v. U.S. Dept. of Health & Human
Services, 52 F.3d 288, 290 (10th Cir. 1995), for the
proposition that “[w]hen a treating physician's
opinion is inconsistent with other medical evidence, the
ALJ's task is to examine the other physicians'
reports to see if they outweigh the treating physician's
report, not the other way around.” See Doc. 31
at 21. Plaintiff's citation to Goatcher
undermines her argument, as she points to no treating source
that the ALJ should have examined the non-examining
physicians' opinions against. See Doc. 31 at
next argues that “[t]he Magistrate Judge's
reasoning is not consistent with the law” because the
ALJ did not rely on regulatory factors when giving Drs.
Gucker and Aase's opinions significant weight, “but
merely describe[d] the definition of a non-examining doctor
and what their duties are.” Doc. 31 at 2. The
regulatory factors Plaintiff references include: the
examining relationship, treatment relationship,
supportability of the opinion, consistency of the opinion
with the record as a whole, the specialization of the medical
source, and any “other factors” which tend to
support or contradict the medical opinion. 20 C.F.R. §
416.927(c)(1)-(6). As the Magistrate Judge set forth, one
such “other factor” is “the amount of
understanding of our disability programs and their
evidentiary requirements.” Doc. 30 at 8-9
(quoting 20 C.F.R. § 416.927(c)(6)). Another is
“the extent to which a medical source is familiar with
the other information in your case record.”
Id. In giving “significant weight” to
Drs. Gucker and Aase's opinions, the ALJ stated that
“[t]hese doctors reviewed [the] evidence and are
familiar with Social Security disability standards.”
AR at 21. Plaintiff objects that these reasons
“are not regulatory factors[.]” Doc. 31
at 2. Having independently studied the regulations, quoted
above, the Court disagrees.
next “objects to the Magistrate Judge's reliance on
the regulatory language that the non-examining consultants
are ‘highly qualified and experts in Social Security
disability evaluation.'” Doc. 31 at 2-3
(quoting Doc. 30 at 8, in turn quoting 20 C.F.R.
§ 416.913a(b)(1)). Plaintiff's objection is
confusing. Was the Magistrate Judge to ignore this regulatory
language? The quoted provision states, in full:
“Administrative law judges are not required to
adopt any prior administrative medical findings, but they
must consider this evidence according to
§§ 416.920b, 416.920c, and 416.927, as appropriate,
because our 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) (emphasis added). As discussed above, this is
precisely what the ALJ did in this case, by weighing the
opinions against the regulatory factors. The regulation
itself also forecloses Plaintiff's argument, that
“[t]he record is silent about Drs. Gucker and
Aase's education, ” etc. See Doc. 31 at 3.
next objection targets the Magistrate Judge's affirmance
of the ALJ's decision to rely on M.E.M.'s school
records in finding her less than markedly limited in this
domain. Doc. 31 at 3. More specifically, Plaintiff
argues that the ALJ erred in relying on the non-examining
doctors' opinions because her accommodations at school
“refute the ALJ's finding.” Doc.
31 at 3. The relevant period is from October 2013, when
Drs. Gucker and Aase rendered their opinion, through the
present. See AR at 61. Plaintiff cites to
M.E.M.'s accommodations, arguing that the Magistrate
Judge erred by failing to discuss evidence from when M.E.M.
was in the seventh grade, as well as M.E.M.'s inability
to recall her address at the hearing. See Doc. 31 at
3-4. Plaintiff's argument was effectively rejected in
Miller ex rel. Thompson v. Barnhart, 205 Fed.Appx.
677 (10th Cir. 2006) (unpublished). There, as here, the
record supported the inference that the child's
impairments required accommodations, affected her ability to
learn, and that she struggled particularly in mathematics.
Id. at 680. The record did not, however,
“compel a finding that her limitations [were]
necessarily ‘marked' rather than
‘moderate'” because there was evidence that
the child could learn and use the information she has
learned, and “three consulting sources rated her with
‘less than marked' limitations in this
domain.” Id. at 681. As such, the Tenth
Circuit found substantial evidence supported the ALJ's
finding and affirmed, “even though [they] might have
made a different findings were [they] the factfinders.”
Id. (citing White v. Barnhart, 287 F.3d
903, 908 (10th Cir. 2002)). The Court reaches the same result
in this case. Here, the ALJ permissibly relied on the
consultant's findings and on M.E.M.'s school records
to find her not disabled. While there is evidence that
supports Plaintiff's posture, the Court is not in a
position to reweigh the evidence when substantial evidence
(more than a mere scintilla) supports the ALJ's decision.
White v. Berryhill, 704 Fed.Appx. 774, 776 (10th
Cir. 2017) (unpublished) (“Substantial evidence is more
than a mere scintilla and is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”) (quoting Flaherty v. Astrue, 515
F.3d 1067, 1070 (10th Cir. 2007)).
argument also ignores evidence that M.E.M. is not as limited
as she contends. Indeed, as the Magistrate Judge explained,
the most recent reports from M.E.M.'s teachers indicate
that M.E.M. is only limited in her ability to
acquire and use information in the area of mathematics.
See Doc. 30 (citing AR at 191-200). And, as
the Magistrate Judge pointed out, M.E.M.'s limitations in
math may have little to do with her impairments. Id.
(citing AR at 271, 277). In fact, in a December 2015
report, M.E.M.'s math teacher opined that M.E.M.
“can be a strong student in the math content subject
she's taking, ” but that preoccupation with another
student and tardiness to class were contributing factors to
M.E.M.'s low grade that quarter. AR at 271-277.
As stated in the pertinent Social Security Ruling, the
Administration does “not consider limitations that are
associated with academic underachievement by a student who
does not have a physical or mental impairment that accounts
for the limitations.” SSR 09-3p, 2009 WL 396025 at *4.
effectively ignores this evidence, objecting to the
Magistrate's conclusion that M.E.M. was only limited in
her ability to acquire and use information in the area of
mathematics in 2014. But that conclusion was M.E.M.'s
teacher's, not the Magistrate Judge's. Doc.
30 at 10 (citing AR at 191-200); see
AR at 192 (stating that the teacher's grading scale
for this domain is relevant to “‘math
only' since that is [M.E.M.]'s only
exceptionality.”). Nonetheless, Plaintiff argues
M.E.M.'s “functioning is markedly limited across
all subject matter, as the need for excessive accommodation
shows.” Doc. 31 at 4 (citing AR at
252, 255). However, “[t]he fact that you do or do not
receive special education services does not, in itself,
establish your actual limitations or abilities.” 20
C.F.R. § 416.924a(b)(7)(iv). Moreover, the Court
disagrees that M.E.M. is subject to “excessive
accommodation, ” as she is in a regular classroom for
86% of the school day. AR at 257. In sum, the
evidence Plaintiff points to does not overwhelm the ALJ's
finding that M.E.M.'s teacher ...