Campo v. Social Security Administration

Filing 21

ORDER AND REASONS denying 17 Motion for Summary Judgment and granting 18 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 9/26/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CARLA CAMPO O/B/O N.G.

CIVIL ACTION

VERSUS

NO: 13-6263

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

SECTION: R(1)

ORDER AND REASONS
Having

reviewed

the

complaint,

the

parties'

motions

for

summary judgment,1 the applicable law, the Magistrate Judge's
Report and Recommendation,2 and the plaintiff's objections to the
Magistrate Judge's Report and Recommendation,3 the Court approves
the Magistrate Judge's Report and Recommendation and adopts it as
its opinion in addition to the following analysis. Thus, the Court
DENIES the plaintiff's motion for summary judgment and GRANTS the
Social Security Administration's cross-motion for summary judgment.

I. BACKGROUND
This action arises from claims the plaintiff, Carla Campo on
behalf of her minor child, N.G., filed with the Social Security
Administration ("SSA") for Supplemental Security Income ("SSI").4
1

R. Docs. 17, 18.

2

R. Doc. 19.

3

R. Doc. 20.

4

R. Doc. 19 at 1.

An administrative law judge ("ALJ") denied Campo's first claim, and
Campo requested review by the SSA's Appeals Council.5 At the same
time, Campo filed another claim with the SSA for SSI, and the claim
was granted.6 Given the inconsistency between the ALJ's denial of
the first claim, and SSA's grant of the second claim, the Appeal's
Council vacated the ALJ's original decision, and consolidated the
two claims for benefits for the ALJ's review.7 The ALJ again denied
Campo's claim.8 Again, Campo requested review by SSA's Appeals
Council, which denied the request.9 Campo then brought this action
pursuant to 405(g) of the Social Security Act, seeking judicial
review of the final decision of the Commissioner of the SSA. Both
parties moved for summary judgment. The Magistrate's Report and
Recommendation recommends that the Court grant summary judgment in
favor of the SSA.

II. LEGAL STANDARD
"Our review of the Commissioner's decision is limited to two
inquiries: (1) whether the decision is supported by substantial
evidence on the record as a whole, and (2) whether the Commissioner

5

Id. at 2.

6

Id.

7

Id.

8

Id.

9

Id.
2

applied the proper legal standard." Perez v. Barnhart, 415 F.3d
457, 461 (5th Cir. 2005). Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." Id. (quoting Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994)) (quotation marks removed). The Court accepts an
ALJ's findings if they are supported by substantial evidence,
regardless of whether other findings would also be permissible. See
Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992).

III. DISCUSSION
Campo

objects

to

the

Magistrate

Judge's

Report

and

Recommendation ("R&R") for a number of reasons. Specifically, Campo
objects to the R&R's findings related to the ALJ's determination
that N.G. does not meet Listing 103.03 for asthma, the ALJ's
alleged failure to follow the Appeals Council's remand order, the
ALJ's failure to include Dr. McFarlain's records in the record, and
the

ALJ's

determination

that

N.G.'s

impairments

did

not

functionally equal a listed impairment.

A. ALJ's Determination that N.G. Does Not Meet Listing 103.03 for
Asthma
First, Campo contends that the Magistrate Judge "assumes away
the

corticosteroid
10

requirement"

R. Doc. 20 at 2.
3

of

Listing

103.03.10

Campo

misconstrues the R&R. The R&R states clearly that even if the
corticosteroid requirement is met, there is still substantial
evidence to support the ALJ's finding that N.G. does not meet the
Listing requirements for 103.03(C)(2).11 This reasoning does not
"assume away" the requirement, and, instead, shows that even if the
requirement is met, it does not overcome the substantial evidence
supporting the ALJ's finding.
Second, Campo contends that the Magistrate Judge's finding is
limited to the wheezing requirement of 103.03(C) and ignores the
"absence

of

extended

symptom-free

periods...."12

Again,

Campo

misconstrues the R&R. The Magistrate Judge relies on the ALJ's
findings that the evidence tending to show both the existence of
chronic and marked respiratory symptoms and persistent low-grade
wheezing was insufficient.13
Third, Campo contends that the Magistrate Judge erred by
accepting

the

Commissioner's

assertion

"that

five

abnormal

respiratory examinations over 39 months ..., even when combined
with four occasions where subjective complaints of wheezing are
noted and one visit in February 2012 to the ER for pneumonia, are
insufficient to demonstrate persistent low grade wheezing."14 Campo

11

R. Doc. 19 at 31.

12

R. Doc. 20 at 2.

13

R. Doc. 19 at 29-31.

14

Id. at 31.
4

argues that this is a post hoc reason for upholding the ALJ's
determination because the ALJ did not include the subjective
complaints in his analysis of whether N.G. suffered persistent low
grade wheezing.15 Because this is a post hoc reason not outlined in
the ALJ's decision, as Campo argues, Campo contends that the Court
must reject it.16 While it is true that the Court may not justify
the ALJ's decision based on a post hoc reason not outlined in the
ALJ's decision, see Newton v. Apfel, 209 F.3d 448, 455 (5th Cir.
2000), this is not that situation. Here, the Magistrate Judge does
not supply a post hoc reason for the ALJ's decision, but instead
merely bolsters her finding that the ALJ's determination was
supported by substantial evidence. The Magistrate Judge highlights
that

even

if

the

ALJ

treated

the

subjective

complaints

as

equivalent to objective evidence of persistent low grade wheezing,
the evidence is still insufficient to support Campo's claim. In
other

words,

the

Magistrate

Judge

demonstrates

that

no

interpretation of the evidence–even one affording more weight to
the subjective complaints–supports Campo's claim. Moreover, the
ALJ's determination already rested on substantial evidence. The ALJ
found insufficient support in the record to find that N.G. suffered
persistent wheezing and abnormal respiratory examinations, and
specifically noted that these records were insufficient because

15

Id.

16

R. Doc. 20 at 2-3.
5

they

were

not

supported

by

the

objective

medical

record.17

Therefore, Campo's contention that this is a post hoc reason for
upholding the ALJ's determination is without merit.
Fourth, Campo contends that the ALJ's findings are based on an
incorrect legal standard because he relied on the absence of
objective medical evidence, which Campo argues is not required by
Listing 103.03.18 While Listing 103.03 may not expressly require
objective medical evidence, an ALJ may discount a plaintiff’s
subjective complaints when the alleged symptoms are not consistent
with the objective medical evidence. See Quijas v. Astrue, 298 F.
App’x 391, 393 (5th Cir. 2008) (citing Chambliss v. Massanari, 269
F.3d 520, 522 (5th Cir. 2001)). Credibility determinations of this
sort rest primarily with the ALJ because they are "precisely the
kinds of determinations that the ALJ is best positioned to make."
Spruill v. Astrue, 299 F.App’x 356, 358 (5th Cir. 2008) (quoting
Falco v. Shalala, 27 F.3d 160, 163-64 (5th Cir. 1994)). Here, the
ALJ discounted the subjective complaints of wheezing in the record
because they were not supported by the objective medical record,
and therefore, in the ALJ's mind, were not credible.19 The Court
does not find error in the ALJ's reliance on the absence of
objective medical records.

17

R. Doc. 16-2 at 31.

18

R. Doc. 20 at 3.

19

R. Doc. 16-2 at 31.
6

Fifth, Campo contends that the ALJ's finding were based on an
incorrect legal standard because the ALJ stated that the evidence
was insufficient to show "chronic and marked respiratory symptoms,"
when Listing 103.03 does not require this showing.20 Instead, Campo
contends

that

Listing

103.03

requires

only

a

showing

of

"[p]ersistent low-grade wheezing between acute attacks or absence
of extended symptom-free periods requiring daytime and nocturnal
use of sympathomimetic bronchodilators ... [s]hort courses of
corticosteroids that average more than 5 days per month for at
least

3

months

during

a

12-month

period...."

Again,

Campo

misconstrues the ALJ's findings. The ALJ's reference to this
alleged incorrect legal standard occurrs only in reference to his
assessment

of

Specifically,

Dr.
the

Stanley's

ALJ

found

"medical
that

Dr.

source
Stanley's

statement."21
records

are

"insufficient to support the existence of the chronic and marked
respiratory symptoms asserted in the medical source statement."22
Clearly, the ALJ does not apply "chronic and marked respiratory
symptoms" as a legal standard, but instead, only references it in
relation to Dr. Stanley's assertions. This objection is without
merit.

20

R. Doc. 20 at 3.

21

R. Doc. 16-2 at 22.

22

Id. (emphasis added).
7

B. ALJ's Failure to Make Dr. McFarlain's Evaluation Part of the
Record
Campo objects to the R&R on the basis that the Magistrate
Judge erred in finding that the ALJ's failure to include Dr.
McFarlain's opinion in the record was harmless.23 The Magistrate
Judge in the R&R concludes that this failure was harmless error
because the evidence relied on by Dr. McFarlain was also before the
ALJ, and therefore, Dr. McFarlain's opinion would not have changed
the ALJ's decision.24 In Ripley v. Chater, the Fifth Circuit stated
that reversal is only appropriate where the ALJ fails to develop
the record fully and fairly when "the applicant shows that he was
prejudiced." 67 F.3d 552, 557 (5th Cir. 1995). Prejudice is shown
where "additional evidence would have been produced if the ALJ had
fully developed the record, and that the additional evidence might
have led to a different decision." Id. at 557 n.22. Here, Campo
makes no showing that the inclusion of Dr. McFarlain's opinion
might have led to a different decision. As such, the Court rejects
this objection.
In her objection, Campo, for the first time, also argues that
the ALJ's failure to include Dr. McFarlain's opinion was in
violation of 20 C.F.R. 416.927(c). Because Campo did not raise this
argument before the Magistrate Judge, the Court will not consider
23

R. Doc. 20 at 5.

24

R. Doc. 19 at 38.
8

this objection. See Rodriguez v. Apfel, 139 F.3d 898, *3 (5th Cir.
1998) ("The general rule is that issues raised for the first time
in objections to a magistrate judge's report are deemed not
properly before the district court, and therefore cannot be raised
on appeal.") (citing Cupit v. Whitley, 28 F.3d 532, 535 n.5 (5th
Cir. 1994)). See also Requena-Rodriguez v. Pasquarell, 190 F.3d
299, 307 n.27 (5th Cir. 1999) (noting that a district court has the
"power

to

decide

that

legal

arguments

not

raised

before

a

magistrate judge are waived").

C. ALJ's Alleged Violation of the Appeals Council's Order
First,
Magistrate

Campo
Judge

objects
failed

to

to

the
find

R&R

on

error

the

in

the

basis

that

ALJ's

the

alleged

violation of 20 C.F.R. 416.1436 (2012).25 The Court finds Campo's
objection

regarding

the

ALJ's

use

of

a

telephone

to

obtain

testimony without merit for the reasons provided by the Magistrate
Judge in the R&R.26
Second, Campo objects to the Magistrate Judge's finding that
the ALJ did not depart from the Appeals Council's order.27 Campo
contends that the Appeals Council's order mandated that the ALJ, on
remand, obtain evidence from a psychologist or psychiatrist, and

25

R. Doc. 20 at 6.

26

Id.; R. Doc. 19 at 31-32.

27

R. Doc. 20 at 6.
9

that by failing to obtain such evidence, the ALJ failed to comply
with the Appeals Council's order.28 Contrary to Campo's argument,
the Appeals Council's order remanding the claim "for updated
medical

evidence,

treatment

records,

and

evidence

from

a

psychologist or psychiatrist and an internist" is qualified by the
later language stating that the ALJ will "if necessary, obtain
evidence from a medical expert (psychologist or psychiatrist and an
internist) to clarify the nature and severity of the claimant's
impairment...."29 For this reason, Campo's contention that the order
required the ALJ to obtain testimony from a psychologist or
psychiatrist is without merit. Moreover, even if Campo is correct
that the ALJ failed to follow the Appeals Council's order, Campo
fails to show prejudice. Campo conclusorily states that the lack of
psychiatric or psychological testimony was prejudicial.30 This is
insufficient.

D. ALJ's Determination that N.G.'s Impairments Did Not Functionally
Equal a Listed Impairment
First,

Campo

objects

to

the

R&R

on

the

basis

that

the

Magistrate failed to recognize the ALJ's error in relying on the
testimony of a non-treating, non-examining physician, Dr. Amusa,

28

Id.

29

R. Doc. 16-3 at 27.

30

R. Doc. 20 at 7.
10

and rejecting the opinion of a treating physician, Dr. Dowling.31
Specifically, Campo disagrees with the Magistrate Judge's finding
that the ALJ had "good cause" to reject Dr. Dowling's opinion in
favor of that of Dr. Amusa, a non-treating, non-expert physician.32
This objection is without merit. As an initial matter, the Court
notes that the ALJ did not reject Dr. Dowling's opinion, but
instead merely afforded it less weight. The ALJ afforded Dr.
Dowling's

opinion,

specifically

the

opinion

provided

in

an

attorney-prepared check-the-box form, "little weight as it is
inconsistent with and unsupported by the objective medical and
school evidence of record, including his own progress notes."33 In
Newton v. Apfel, the Fifth Circuit stated that "[g]ood cause may
permit an ALJ to discount the weight of a treating physician
relative to other experts where the treating physician's evidence
is conclusory, is unsupported by medically acceptable clinical,
laboratory, or diagnostic techniques, or is otherwise unsupported
by the evidence." 209 F.3d 448, 456 (5th Cir. 2000). Under this
standard, the ALJ did not err by affording Dr. Dowling's opinion
little weight.
Furthermore, Campo fails to show that the ALJ's failure to
apply 20 C.F.R. § 416.927(c)'s factors resulted in reversible

31

Id. at 8.

32

Id.

33

R. Doc. 16-2 at 23.
11

error. Under Newton, even where good cause exists to give less
weight to a treating physician's opinion, the "ALJ must consider
the following factors before declining to give any weight to the
opinions of a treating doctor: length of treatment, frequency of
examination, nature and extent of relationship, support provided by
other

evidence,

consistency

of

opinion

with

record,

and

specialization." Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001)
(citing Newton, 209 F.3d at 458). Here, while the ALJ explained in
detail his rationale for affording Dr. Dowling's opinion less
weight, the ALJ did not expressly refer to these six factors. Under
the Fifth Circuit's guidance in Newton, it is unclear, when good
cause exists, whether an ALJ must apply the six-factor test when he
declines to afford a treating physician's opinion controlling
weight,

or

instead

only

when

he

flatly

rejects

a

treating

physician's opinion.34 Under the latter interpretation, the ALJ
would not be required to apply the six-factor test in this case
because he had good cause to afford Dr. Dowling's opinion less
weight, and still considered it fully, as opposed to rejecting it.
Even assuming the ALJ was required to apply the six factors, any

34

Compare Jones v. Astrue, 821 F. Supp. 2d 842, 852 (N.D.
Tex. 2011) (finding that because "the ALJ did not entirely reject
[the treating physician's opinion and] instead properly gave it
less weight [it] therefore did not need to perform the six-step
analysis discussed in Newton") with M.P.B. v. Astrue, No. 12-cv0088, 2013 WL 869385, at *5 (W.D. La. Feb. 11, 2013) (holding
that "it is not only when the ALJ elects to give no weight to the
opinion of the treating physician that Newton and the regulations
require the six-factor analysis").
12

error committed by the ALJ was harmless. The ALJ explained in
detail how Dr. Dowling's opinion was unsupported by the record, and
how Dr. Dowling's opinion was inconsistent with his own records. In
doing so, it appears that the ALJ afforded less weight not to Dr.
Dowling's records as a whole, but instead merely to Dr. Dowling's
opinions in the attorney-prepared check-the-box form. It is clear
from the ALJ's extensive review of the record that the ALJ also
acknowledged the remaining factors, including the duration and
frequency of N.G.'s treatment with Dr. Dowling and Dr. Dowling's
specialty. Furthermore, the ALJ noted that Dr. Dowling's opinion
was contradicted by the objective tests performed by Dr. Clark.
Given the lack of support in the record for Dr. Dowling's opinion,
the ALJ's extensive review of the record, including all of Dr.
Dowling's

notes,

and

the

existence

of

objective

testing

contradicting Dr. Dowling's opinion, the Court is convinced that
application of the six-factor test outlined in Newton would not
have caused the ALJ to reach a different conclusion either as to
whether Dr. Dowling's opinion should be afforded greater weight or
whether N.G. met the requirements for a listed impairment. For this
reason, even if the ALJ erred in not applying the six-factor test,
the Court declines to remand this case to the ALJ because Campo
suffered no prejudice.
Second, Campo objects to the R&R on the basis that the
Magistrate Judge failed to recognize that the ALJ erred by failing

13

to make Dr. McFarlain's opinion part of the record, and by not
recognizing the support for Dr. Dowling's opinion contained in the
teacher reports.35 Campo's objections are essentially recitations
of the arguments contained in her motion for summary judgment.36 The
Magistrate Judge already addressed these arguments, and the Court
agrees with the reasoning provided in the R&R.37
Third, Campo objects to the R&R because it fails to recognize
the ALJ's alleged error in finding that N.G. has less than marked
limitations in acquiring and using information based on N.G.'s
improvements with medication and accommodations at school.38 In
support, Campo cites SSR 09-1p, which provides that "[t]he more
help or support of any kind that a child receives beyond what would
be expected for children the same age without impairments, the less
independent the child is in functioning, and the more severe we
will find the limitation to be." Title XVI: Determining Childhood
Disability Under the Functional Equivalence Rule–The "Whole Child"
Approach, 2009 WL 396031, at *7 (S.S.A. Feb. 17, 2009). While the
presence of medications and accommodations support a finding of a
limitation, "Social Security Rulings 09-1p and 09-2p do 'not
require

that

a

marked

limitation

35

R. Doc. 20 at 9.

36

R. Doc. 17-1 at 23.

37

R. Doc. 19 at 38-41.

38

R. Doc. 20 at 9-10.
14

be

found

under

the

listed

circumstances.

Rather

[they]

require[]

that

a

limitation

be

found.'" McGrew ex rel. K.M. v. Colvin, No. 13-237, 2014 WL 68766,
at *8 (E.D. La. Jan. 8, 2014) (quoting Scotino v. Colvin, No.
4:12cv0674, 2013 WL 5291722, at *10 (E.D. Mo. Sept. 19, 2013)
(quoting Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011))). "A
finding of a marked limitation is not mandated simply because the
child functions better with placement in special education classes
or other supports." Id. (citing Richardson v. Barnhart, 136 F.
App'x 463, 466 (3d Cir. 2005)). Here, the ALJ considered the
evidence of N.G.'s medications and academic accommodations, and
determined that while N.G. has limitations related to acquiring and
using information and attending and completing tasks, they are not
marked limitations.39 The ALJ complied with the requirements of SSR
09-1P in that he found that limitations existed, and substantial
evidence supported the ALJ's findings that these limitations are
less than marked. Therefore, the ALJ committed no error.

39

R. Doc. 16-2 at 31-34.
15

IV. CONCLUSION
Accordingly, Campo's motion for summary judgment is DENIED and
the SSA's cross-motion for summary judgment is GRANTED.

New Orleans, Louisiana, this

26th

day of September, 2014.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

16