M. v. COLVIN

Filing 37

ORDER ADOPTING 32 Report and Recommendations. Signed by Judge Richard L. Young on 9/16/2014.(TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

D. N. M. a minor by his mother,
ALETRUS M. BRAME,

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Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

1:13-cv-00884-RLY-DKL

ENTRY ON MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, D.N.M., a minor by his mother, Aletrus Brame, appeals the
Administrative Law Judge’s decision denying his application for social security disability
benefits. Pursuant to 28 U.S.C. § 636, the court referred the matter to the Magistrate
Judge (Filing No. 31), who submitted her report and recommendation on August 8, 2014.
(Filing No. 32). Plaintiff objects to the Magistrate Judge’s report and recommendation.
(Filing No. 34). For the reasons set forth below, the court ADOPTS the Magistrate
Judge’s report and recommendation.
I.

Background
D.N.M. is eleven years old. On August 24, 2010, his mother filed an application

for Social Security Supplemental Income disability benefits on his behalf. His
application was denied initially and on reconsideration. An Administrate Law Judge

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(”ALJ”) held a hearing and, on December 1, 2011, denied his application again. The
Appeals Council finally issued an order affirming the denial on April 3, 2013. D.N.M.
appeals to this court.
The ALJ found that D.N.M. has the following severe impairments: asthma,
attention deficit hyperactivity disorder (“ADHD”), and depressive disorder.
Additionally, the ALJ concluded that D.N.M. does not have an impairment or
combination of impairments that meets or medically equals the severity of a listed
impairment. To have a medically equivalent disability, the claimant must show that he
has a marked limitation in two of five domains of functioning or an extreme limitation in
one domain. See 20 C.F.R. § 416.926a(d). In arriving at her conclusion, the ALJ found
that D.N.M. had: (1) less than marked limitation in acquiring and using information; (2)
less than marked limitation in attending and completing tasks; (3) less than marked
limitation in interacting and relating with others; (4) less than marked limitation in
moving about and manipulating objects; and (5) less than marked limitation in the ability
to care for himself.
The Magistrate Judge found that the ALJ supported such a finding with substantial
evidence. D.N.M. objects to the report stating that the Magistrate Judge “erroneously
never considered the ALJ’s erroneous rejection of [Dr. Gates’ evaluation] as evidence of
the claimant’s disability.” (Plaintiff’s Objection, Filing No. 34, at ECF p. 4).
Expounding upon this claim, Plaintiff asserts that the ALJ failed to “give any good
reasons for ignoring” Dr. Gates’ report. (Id.). Dr. Gates’ report contained a check-mark

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determination in each of the above five categories in which he concluded that D.N.M.
had marked limitation in interacting and relating with others and caring for himself.
II.

Standard
When a party raises specific objections to elements of a magistrate judge’s report

and recommendation, the district court reviews those elements de novo, determining for
itself whether the magistrate judge’s decision as to those issues is supported by
substantial evidence or was the result of an error of law. FED. R. CIV. PRO. 72(b). The
district court “‘makes the ultimate decision to adopt, reject, or modify’ the report and
recommendation, and it need not accept any portion as binding;” the court may, however,
defer to and adopt those conclusions where a party did not timely object. Sweet v.
Colvin, No. 1:12-cv-00439-SEB-TAB, 2013 WL 5487358, * 1 (S.D. Ind. Sept. 30, 2013)
(quoting Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759–761 (7th Cir. 2009)).
III.

Discussion
In reviewing the Commissioner’s factual findings, courts are deferential; if her

findings are supported by substantial evidence, then courts must affirm. See Skarbek v.
Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). Substantial evidence is more than a
scintilla, but less than a preponderance of the evidence. See Wood v. Thompson, 246 F.3d
1026, 1029 (7th Cir. 2001). Although review of the Commissioner’s factual findings is
deferential, review of her legal conclusions is de novo. See Jones v. Astrue, 1155, 1160
(7th Cir. 2010).
An ALJ is not required to discuss every piece of evidence, but if the decision lacks
an adequate discussion of the issues, the court will remand it. See Campbell v. Astrue,
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627 F.3d 299, 306 (7th Cir. 2010). Additionally, “[a] treating physician’s opinion is
entitled to controlling weight if it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence.”
Id. (citation omitted). If an ALJ discounts a treating physician’s opinion, she “must offer
‘good reasons’” for doing so. Id. (citing 20 C.F.R. § 404.1527(d)(2)). A physician’s
opinion on ultimate issues reserved to the Commissioner, however, is not given special
treatment. See 20 C.F.R. § 416.927; see also SSR 96-5p, 1996 WL 374183 (Jul. 2,
1996). Finally, “[a]n ALJ may not selectively discuss portions of a physician’s report
that support a finding of non-disability while ignoring other portions that suggest a
disability.” Campbell, 627 F.3d at 306.
A reading of the ALJ’s decision shows that, contrary to Plaintiff’s position, the
ALJ did not ignore Dr. Gates’ report. In fact, the ALJ discussed both the favorable and
unfavorable portions of Dr. Gates’ report. (ALJ Decision, Filing No. 16-2 at ECF p. 1718, 21-25). The ALJ compared Dr. Gates’ assessments with the other evidence in the
record and found that they were not well-supported. The court finds that the ALJ’s
decision contained an adequate discussion of Dr. Gates’ report and therefore remand is
inappropriate.
Additionally, although Plaintiff’s objection is that the ALJ ignored the evidence, it
appears that D.N.M. is more concerned that the ALJ did not follow Dr. Gates’ checkmark limitation determinations. The check-mark determinations made by Dr. Gates did
not include factual material supporting such conclusions and were inconsistent with other
evidence in the record. Thus, they were not entitled to controlling weight. See Campbell,
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627 F.3d at 306. Additionally, the check-mark determinations do not bind the
Commissioner, as they are not medical opinions, but rather legal determinations to be
made by the Commissioner. See 20 C.F.R. § 416.927; see also SSR 96-5p, 1996 WL
374183 (Jul. 2, 1996). Thus, the ALJ was not required to find a disability simply because
Dr. Gates checked two areas as having “marked” limitations. The court finds that
substantial evidence supported the ALJ’s findings and therefore, ADOPTS the
Magistrate Judge’s report and recommendation.
IV.

Conclusion
The court, having considered D.N.M.’s objection to the report and

recommendation, ADOPTS the Magistrate Judge’s report and recommendation in full
(Filing No. 34) and affirms the ALJ.

SO ORDERED this 16th day of September 2014.

s/ Richard L. Young________________
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF
United States District Court JUDGE
United States District Court
Southern District of Indiana
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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