McCray v. Soc. Sec. Admin.

• Decision Date: 28 January 2020
• Docket Number: No. CIV 19-0090 JB/GBW,CIV 19-0090 JB/GBW
• Citation: 435 F.Supp.3d 1186
• Parties: Johnny MCCRAY, Jr., Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — District of New Mexico

435 F.Supp.3d 1186

Johnny MCCRAY, Jr., Plaintiff,

v.SOCIAL SECURITY ADMINISTRATION, Defendant.

No. CIV 19-0090 JB/GBW

United States District Court, D. New Mexico.

Filed January 28, 2020

Francesca J. MacDowell, MacDowell Law, P.C., Placitas, New Mexico, Attorney for the Plaintiff.

Danielle A. Pedderson, Laura Holland, Social Security Administration, Denver, Colorado --and-- John C. Anderson, United States Attorney, Manuel Lucero, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Plaintiff's Motion to Reverse and Remand for Rehearing with Supporting Memorandum, filed July 29, 2019 (Doc. 22)("Motion"); and (ii) the Plaintiff's Objections to Magistrate Judge's December 2, 2019 Proposed Findings and Recommended Disposition (Doc. # 29), filed December 16, 2019 (Doc. 30)("Objections"). Being fully advised, the Court grants in part and denies in part Plaintiff Johnny McCray, Jr.'s, Motion, and the Court overrules all of the McCray's Objections except his Objection that the ALJ who heard his case was unconstitutionally appointed.

BACKGROUND

Plaintiff Johnny McCray, Jr., filed an application for Supplemental Security Income ("SSI") on March 5, 2015. See Complete Administrative Transcript at 17, filed May 1, 2019 (Doc. 17-1)("AR"). The Social Security Administration ("SSA") denied McCray's application on December 28, 2018. See AR at 1. On January 31, 2019, McCray filed a complaint seeking review of the Commissioner's decision. See Complaint, filed January 31, 2019 (Doc. 1). On July 29, 2019, McCray filed the Motion. On November 11, 2019, the Motion was fully briefed. See Notice of Completion of Briefing, filed November 11, 2019 (Doc. 28). On December 2, 2019, the Honorable Gregory B. Wormuth, United States Magistrate Judge for the United States District Court for the District of New Mexico, filed his PFRD, in which he recommends denying McCray's Motion and affirming the final decision of the Administrative Law Judge ("ALJ"). See PFRD at 1. McCray filed Objections to the PFRD on December 16, 2019, objecting to all the Magistrate Judge's recommended findings. See Objections at 1-13. For the reasons discussed below, the Court agrees that the ALJ committed no reversible error and adopts Magistrate Judge Wormuth's PFRD.

STANDARD OF REVIEW

After a party objects to the Magistrate Judge's proposed findings and recommendations, the Court "shall make a de novo determination of those portions ... to which objection is made." 28 U.S.C. § 636(b). Objections must be made with specificity; general or conclusory objections are insufficient. See United States v. One Parcel of Real Property, With Buildings, Appurtenances, Improvements, and Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73 F.3d 1057, 1060-61 (10th Cir. 1996). Further, "issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). "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).

ANALYSIS

The Court grants the Motion in part and denies it in part. The Court rejects McCray's first seven objection, because it concludes that: (i) substantial evidence supports the ALJ's decision not to incorporate McCray's cane into his residual functional capacity determination; (ii) substantial evidence supports the ALJ's finding on McCray's handling and fingering ability; (iii) the ALJ's residual functional capacity assessment does not fail to consider the evidence of limitations on McCray's standing and walking ability; (iv) the ALJ did not fail to develop adequately the record, because little evidence supports a finding of mental impairment

; (v) the ALJ did not commit reversible error in discounting McCray's subjective report of symptoms; (vi) the ALJ did not err in assigning little weight to the report of McCray's family member, because it provides minimal information on McCray's functioning; and (vii) the Appeals Council did not err in declining to remand, because McCray's additional evidence does not have a reasonable probability of changing the outcome of the ALJ's decision. The Court sustains McCray's final objection, because it concludes that the Appeals Council erred in declining to remand for a hearing before a new ALJ, because McCray did not forfeit his appointments clause challenge and the ALJ was an Officer of the United States.

I. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S DECISION NOT TO INCORPORATE MCCRAY'S CANE INTO HIS RESIDUAL FUNCTIONAL CAPACITY DETERMINATION.

McCray raises several Objections to Magistrate Judge Wormuth's proposed finding that the ALJ did not err by failing to incorporate McCray's use of a cane into the residual functional capacity ("RFC") finding. See Objections at 1-3. First, McCray asserts that Magistrate Judge Wormuth engaged in post hoc rationalization when he found that the ALJ had rejected his treating nurse's opinion and adopted Dr. Mamaril's opinion regarding the use of the cane. The ALJ, however, explicitly assigned little weight to Ms. Mader's opinion and "largely adopted" Dr. Mamaril's opinion, excepting Dr. Mamaril's finding of no manual limitations. AR at 26-27. Although the ALJ's discussion of the weight he assigned to various medical opinions is several paragraphs removed from the ALJ's reference to McCray's cane use, see AR at 24, both discussions fall under the topic of McCray's RFC, see AR at 22-28. It requires no post hoc rationalization to conclude that the ALJ intended his assessment of various medical opinions to apply to the medical evidence to which those medical opinions relate.

Next, McCray objects to "the Magistrate Judge's recommendation that this Court find that the ALJ did not err in elevating the opinion of non-examining agency doctor Mamaril (that the use of a cane is not medically supported) over that of treating NP Mader." Objections at 2 (citing PFRD at 8). Magistrate Judge Wormuth made no such recommendation. The error that McCray alleges regarding the cane's use is that substantial evidence does not support the ALJ's decision to disregard the cane. See Motion at 5-7. Magistrate Judge Wormuth disagreed with McCray, finding that there was "little objective medical evidence establishing that the cane is medically necessary." PFRD at 8. McCray never argued any error in the ALJ's decision to assign little weight to Mader's opinion and significant weight to Dr. Mamaril's opinion. See generally Motion at 1-27. Thus, Magistrate Judge Wormuth did not address any such error. The Court deems this issue waived and will not consider it. See United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) ("In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived."); Marshall v. Chater, 75 F.3d at 1426 ("Issues raised for the first time in objections to the magistrate judge's recommendations are deemed waived."); Moody v. Dollar Tree Store No. 2967, 402 F. Supp. 3d 1103, 1106 (D.N.M. 2019) (Browning, J.).

McCray raises other objections regarding the use of the cane, including that it "affects a worker's ability to lift, carry, reach, and handle"; that McCray's subjective reports of his symptoms support the cane's necessity; and that the cane was required to be incorporated into the ALJ's hypothetical to the vocational expert. See Objections at 2-3. All of these Objections amount to an assertion that the ALJ was required to incorporate McCray's cane use into the RFC determination. As Magistrate Judge Wormuth noted, the ALJ was required to incorporate the cane into the RFC only if he found that it was medically necessary. See Staples v. Astrue, 329 F. App'x 189, 191-92 (10th Cir. 2009) (unpublished)¹ ; Social Security Ruling (SSR) 96-9p. The ALJ adopted Dr. Mamaril's opinion that the cane was not medically supported, and Magistrate Judge Wormuth concluded substantial evidence supported the ALJ's decision. Magistrate Judge Wormuth's analysis persuades the Court, and the Court hereby adopts it. McCray's arguments to the contrary seek to have the Court reweigh the evidence, which it cannot do. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).

II. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S FINDING ON MCCRAY'S HANDLING AND FINGERING ABILITY.

McCray next objects to Magistrate Judge Wormuth's conclusion that the ALJ committed no error in finding that McCray could frequently handle, finger, and feel with his right upper extremity. McCray points to evidence in the record supporting a finding that McCray was more limited. See Objections at 3-6. The Court must affirm the ALJ's decision so long as substantial evidence supports the conclusion and it complies with legal standards. See Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800-01 (10th Cir. 1991). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Casias v. Sec'y of Health & Human Servs., 933 F.2d at 800. " ‘The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.’ " Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) ).

In reviewing the evidence of impairment in McCray's right upper extremity, the ALJ considered the subjective evidence. He considered McCray's testimony that his carpal tunnel syndrome

is his third worst problem, after his back pain and the numbness, tingling, and spasms all over the right side of his body. See AR at 23, 49. The ALJ also considered McCray's function report,...