United States District Court, D. Colorado
OPINION AND ORDER
MICHAEL J. WATANABE United States Magistrate Judge
government determined that Plaintiff's minor child,
Claimant, is not disabled for purposes of the Social Security
Act. (AR 14). Plaintiff has asked this Court to
review that decision. The Court has jurisdiction under 42
U.S.C. § 405(g), and both parties have agreed to have
this case decided by a U.S. Magistrate Judge under 28 U.S.C.
§ 636(c). (Docket No. 13).
Social Security appeals, the Court reviews the decision of
the administrative law judge (“ALJ”) to determine
whether the factual findings are supported by substantial
evidence and whether the correct legal standards were
applied. See Pisciotta v. Astrue, 500 F.3d 1074,
1075 (10th Cir. 2007). “Substantial evidence is such
evidence as a reasonable mind might accept as adequate to
support a conclusion. It requires more than a scintilla, but
less than a preponderance.” Raymond v. Astrue,
621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation
marks omitted). The Court “should, indeed must,
exercise common sense” and “cannot insist on
technical perfection.” Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court
cannot reweigh the evidence or its credibility. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
person under the age of 18 is disabled within the meaning of
the Social Security Act if he or she has “a medically
determinable physical or mental impairment or combination of
impairments that causes marked and severe functional
limitations, and that can be expected to cause death or that
has lasted or can be expected to last for a continuous period
of not less than 12 months.” 20 C.F.R. § 416.906.
No individual under the age of 18 will be considered disabled
if he or she is engaging in substantial gainful activity.
Social Security regulations set forth a three-step sequential
process to determine whether an individual under the age of
18 is disabled under Title XVI of the Social Security Act. 20
C.F.R. § 416.924. At step one, a child will not be
deemed disabled if he or she is working and such work
constitutes substantial gainful activity. If the child is not
engaging in substantial gainful activity, the analysis
proceeds to the second step. Id. at §
416.924(a) and (b). At step two, it must be determined
whether the child suffers from a medically determinable
impairment or a combination of impairments that is severe. If
the child has an impairment or combination of impairments
that is not severe, the child is not disabled and the
analysis is terminated. If the impairment or combination of
impairments is severe, the analysis proceeds to step three.
Id. at § 416.924(a) and (c). At step three, a
child's impairment or combination of impairments must
meet, medically equal, or functionally equal the severity of
the listings found in 20 C.F.R. Part 404, Subpart. P,
Appendix 1 (the “Listings”), and the duration
requirement of at least 12 months. Id. at §
416.924(a) and (d).
case, the ALJ determined that Claimant's asthma is a
severe impairment. (AR 17). However, at step three, the ALJ
further determined that Claimant's asthma does not
functionally equal the severity of the Listings. (AR 17). As
a result, the ALJ determined that Claimant is not disabled.
asserts two errors: first, that the ALJ “committed
harmful error of law in failing to discuss, assess, or weigh
the opinion from Claimant's 3rd grade teacher despite the
fact it indicated more serious limitations from
Claimant's asthma; and second, that the ALJ
“committed harmful error of law when failing to
properly assess whether Claimant medically equaled Listing
103.03.” (Docket No. 15 at 3).
noted that he considered “all the relevant evidence,
” including “information from . . . school
teachers” (AR 17). He specifically discussed and relied
on Claimant's second grade teacher's statement, but
did not specifically mention Claimant's third grade
teacher's statement. Plaintiff contends that this was
error because the third grade teacher's statement
indicated “more serious limitations from Claimant's
asthma.” (Docket No. 15 at 15).
is not required to explicitly discuss all of the evidence in
the record. See Wilson v. Astrue, 602 F.3d 1136,
1148 (10th Cir. 2010) (“There is obviously no
requirement that the ALJ reference everything in the
administrative record.”). Further, the Tenth
Circuit's general practice is to take a lower tribunal at
its word when it states that it has considered a matter.
See Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th
Cir. 2007). Here, the ALJ noted that he considered
“relevant evidence from . . . school teachers . . .
.” (AR 17). The Court will not second-guess this
assertion. The question then is whether the ALJ was required
to address the third grade teacher's statement in his
Decision because it was “significantly
probative.” See Briggs v. Massanari, 248 F.3d
1235, 1239 (10th Cir. 2001) (quoting Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)).
(“Although the ALJ need not discuss all of the evidence
in the record, he may not ignore evidence that does not
support his decision, especially when that evidence is
third grade teacher, Ms. Hwang, submitted a Teacher
Questionnaire that was sent to Claimant's school as a
result of Claimant's appeal of the initial denial of her
application for disability. (AR 157-165). Ms. Hwang was
Claimant's third grade general education teacher and
noted that Claimant “would miss a lot of days during
the week because of illness or the weather was too
cold.” (AR 158). She further noted that Claimant
“needs a lot of support because she misses school
often. She is not proficient in her grade level and this is
due to missed school days.” (AR 160). Ms. Hwang also
explained that Claimant “has severe asthma that affects
her school days. She has gone home early or has complained
about tight chest pains which eventually lead her into going
home early.” Further down on the same page of the
Questionnaire, Ms. Hwang noted that she was “not quite
sure what the illness is but [she's] assuming that it has
to do with a shortness of breath.” (AR 164). Ms. Hwang
indicated that Claimant had various problems learning new
material, comprehending certain subjects, applying previously
learned material, and completing her assignments. (AR
159-160). Ms. Hwang's assessment is strongly based on
Claimant's frequent absences which Ms. Hwang links with
contrast, Claimant's second grade teacher's Teacher
Questionnaire, on which the ALJ relied heavily, makes clear
that while Claimant missed class often, Claimant was capable
of learning and excelling in school when she attended:
It appears to me that [Claimant] is fully capable of learning
however she lacks exposure. When in school, consistently, I
noticed great growth. After long absences, I saw a major
decline in the growth that was previously gained. She has a
strong and eager spirit therefore when given materials at or
just above her ...