United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
the Court is the report and recommendation (Dkt. # 19) of
Magistrate Judge Frank H. McCarthy recommending that the
Court affirm the decision of the Commissioner of the Social
Security Administration (the agency) to deny plaintiff's
claim for disability benefits. Plaintiff has filed an
objection (Dkt. # 20) to the report and recommendation, and
he seeks a remand for further proceedings. Defendant filed a
response (Dkt. # 21) to plaintiff's objection, arguing
that the magistrate judge's decision should be affirmed.
applied for disability benefits on November 7, 2014, alleging
that he became disabled on March 1, 2014. Dkt. # 10-2, at 11.
Plaintiff, a minor, appeared at the disability hearing
through his legal guardian, who is also his mother, Lawana
McCleary, and was represented by an attorney. Id.
Plaintiff testified first at the hearing in front of the
administrative law judge (ALJ). Id. at 16-17. He
stated that he is six-feet tall and weighs 191 pounds.
Id. at 16. At the time, plaintiff was in the ninth
grade at Central High School, where he participates in sports
as well as his classes. Id. at 16-17. Plaintiff
testified that he misses his 8:30 a.m. class only, and that
is because he does not get up until that time. Id.
Plaintiff also testified that he has asthma, but that it is
getting better. Id. at 17. Next, plaintiff's
mother, Lawana McCleary, testified. Id. She
testified that plaintiff is on medication for depression and
asthma. Id. She also testified that plaintiff makes
mainly Ds and Fs in school, with a few Cs. Id.
determined that, although plaintiff's medically
determinable impairments could reasonably be expected to
produce plaintiff's described symptoms, the intensity,
persistence, and limiting effects are inconsistent with
medical evidence and other evidence in the record.
Id. Important to the ALJ's decision was the
following: From the record, plaintiff's teacher stated
that plaintiff had attendance problems and problems
completing tasks, but that she knew of no medical conditions.
Id. at 18. Tulsa Public School (TPS) records
indicated that plaintiff did well in most classes, although
he failed algebra, U.S. government, and Oklahoma history.
Id. Two teachers indicated that plaintiff was a
capable student, but that he missed too many classes to bring
up his grades. Id. Plaintiff went to Family Medical
Care in 2013, where he was diagnosed with ADHD, and informed
to use his asthma medication. Id. Plaintiff takes
Wellbutrin and, as a consequence, has performed better in
school. Id. His asthma was described in one
doctor's visit in March 2013, as “well
controlled.” Dkt. # 10-7, at 30. Plaintiff was approved
for playing sports in August 2013, and he had not used his
inhaler or nebulizer for several months. Dkt. # 10-2, at 19.
noted several discrepancies between plaintiff's and his
mother's testimony, and the objective evidence.
Id. at 20. Plaintiff's mother stated that he
made mainly Ds and Fs in school, while the TPS records
indicate that, during the Fall of 2016, plaintiff made one A,
two Bs, two Cs, one D, and one F. Id.
Plaintiff's mother also claimed that plaintiff had
numerous problems in school and had been suspended
frequently, while TPS records indicate that his last
suspension was in December 2014. Id. Although
plaintiff's mother claimed that plaintiff's asthma is
severe, plaintiff has been cleared by two physicians to
participate in sports. Id. Additionally, plaintiff
claimed that his ADHD medication slows him down, but Family
and Children's Services records indicate that plaintiff
does not take his medications. Id.
next made a finding according to the six functional
equivalence domains. Id. at 21. As to acquiring and
using information, the ALJ found that plaintiff has less than
marked limitation. Id. at 22. As to attending and
completing tasks, the ALJ found that plaintiff has less than
marked limitation. Id. at 23. As to interacting and
relating with others, the ALJ found that plaintiff has marked
limitation. Id. at 24. As to moving about and
manipulating objects, the ALJ found that plaintiff has no
limitation. Id. at 25. As to caring for yourself,
the ALJ found that plaintiff has less than marked limitation.
Id. at 27. And as to health and physical well-being,
the ALJ found that plaintiff has less than marked limitation.
Id. Because plaintiff had only one marked and no
severe functional limitations, plaintiff's request for
benefits was denied on March 24, 2017. Id. at 8.
appealed for review of the ALJ's decision to the Office
of Disability Adjudication and Review, and that request was
denied. Id. at 2. Plaintiff then filed this appeal,
which was referred to the magistrate judge, who recommended
that the decision of the Commissioner of the Social Security
Administration be affirmed. Dkt. # 19, at 8.
consent of the parties, the Court may refer any pretrial
matter dispositive of a claim to a magistrate judge for a
report and recommendation. Fed.R.Civ.P. 72(b). However, the
parties may object to the magistrate judge's
recommendation within fourteen days of service of the
recommendation. Schrader v. Fred A. Ray, M.D., P.C.,
296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers,
195 F.3d 573, 579 (10th Cir. 1999). The Court “shall
make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). The
Court may accept, reject, or modify the report and
recommendation of the magistrate judge in whole or in part.
Court may not reweigh the evidence or substitute its judgment
for that of the ALJ but, instead, reviews the record to
determine if the ALJ applied the correct legal standard and
if his decision is supported by substantial evidence.
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” O'Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). “A decision is
not based on substantial evidence if it is overwhelmed by
other evidence in the record or if there is a mere scintilla
of evidence supporting it.” Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quoting
Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.
1988)). The Court must meticulously examine the record as a
whole and consider any evidence that detracts from the
Commissioner's decision. Washington v. Shalala,
37 F.3d 1437, 1439 (10th Cir. 1994).
person under the age of eighteen is “disabled” if
he “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); see also 20 C.F.R. § 416.906. The
agency has established a three-step process to review claims
for disability benefits of individuals under the age of
eighteen. See 20 C.F.R. § 416.924(a). The Tenth Circuit
has described this process as follows:
The Administrative Law Judge (ALJ) must determine, in this
order, (1) that the child is not engaged in substantial
gainful activity, (2) that the child has an impairment or
combination of impairments that is severe, and (3) that the
child's impairment meets or equals an ...