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Panas v. Berryhill

United States District Court, D. New Mexico

August 7, 2018

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

          MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS 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.

         I) STANDARD OF REVIEW

         When 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).

         The 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).

         II) BACKGROUND [1]

         Plaintiff 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.

         Plaintiff 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.

         III) ANALYSIS

         Plaintiff's 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.”[2] 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.

         A) Objections regarding the domain of acquiring and using information.

         As the 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.

         First, 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 1-10.

         Plaintiff 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.[3] Plaintiff objects that these reasons “are not regulatory factors[.]” Doc. 31 at 2. Having independently studied the regulations, quoted above, the Court disagrees.[4]

         Plaintiff 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.

         Plaintiff's 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)).

         Plaintiff's 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.

         Plaintiff 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 ...


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