Justin Ivory v. Michael J Astrue, No. 2:2007cv05929 - Document 18 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The decision of the Social Security Commissioner is Affirmed. (See document for details) (db)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 JUSTIN IVORY, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-5929-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Justin Ivory seeks judicial review of the Social Security 19 Commissioner s denial of his application for Supplemental Security 20 Income ( SSI ) benefits under the Social Security Act. For the reasons 21 stated below, the Commissioner s decision is AFFIRMED. 22 23 I. Facts and Procedural History 24 Plaintiff was born on March 27, 2001. (AR 19.) Plaintiff s mother 25 applied for SSI benefits on his behalf on October 14, 2004, alleging 26 disability due to Plaintiff s impairment of speech and language delays. 27 (Id.) 28 // 1 The Commissioner denied Plaintiff s application on November 19, 2 2004. (AR 59.) Administrative Law Judge ( ALJ ) Richard L. Leopold held 3 a hearing on May 3, 2005, at which Plaintiff and his mother failed to 4 appear. (AR 52.) The ALJ determined that Plaintiff and his mother were 5 non-essential witnesses, and, based solely on the record, he issued 6 a decision concluding that Plaintiff was not entitled to SSI on August 7 2, 2005. (AR 52-56.) The Social Security Administration Appeals Council 8 remanded the case to the ALJ for a new hearing on December 12, 2005, 9 finding that the ALJ needed to consider the testimony of Plaintiff s 10 mother in reaching the disability determination. (AR 73-74.) 11 The ALJ held a new hearing on September 8, 2006, at which 12 Plaintiff and his mother testified without counsel. (AR 16.) The ALJ 13 issued an unfavorable decision on October 19, 2006, in which he 14 determined that Plaintiff had not engaged in substantial gainful 15 activity, that his impairment of speech and language delays was 16 severe, and that his impairment did not meet, medically equal, or 17 functionally equal the listings found in 20 C.F.R. Part 404, Subpart 18 P, Appendix 1. (AR 19.) The ALJ found that Plaintiff had not been 19 disabled from the alleged onset date to the decision date, and that he 20 was not entitled to SSI benefits. (Id.) 21 Plaintiff requested review of the ALJ s decision and submitted 22 two additional exhibits to support the claim. (AR 7, 10.) The Appeals 23 Council denied Plaintiff s request for review on July 18, 2007. (AR 4.) 24 Plaintiff timely filed this action on September 12, 2007, alleging that 25 the ALJ erred because (1) the ALJ should have determined that Plaintiff 26 functionally met the listings under 20 C.F.R. § 416.926; (2) the 27 decision is not supported by substantial evidence; and (3) the ALJ 28 improperly discounted the credibility of Plaintiff s mother in reaching 2 1 the disability determination. (Joint Stip. 3.) Plaintiff requests 2 remand for a new administrative hearing or the award of benefits. 3 (Joint Stip. 30.) 4 5 II. 6 Standard of Review The Court must uphold the Social Security Administration s 7 disability determination unless it is not supported by substantial 8 evidence or is based on legal error. Ryan v. Comm r of Soc. Sec., 528 9 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm r of Soc. Sec. 10 Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence 11 means more than a scintilla, but less than a preponderance; it is 12 evidence that a reasonable person might accept as adequate to support 13 a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 14 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 15 2006)). To determine whether substantial evidence supports a finding, 16 the reviewing court must review the administrative record as a whole, 17 weighing both the evidence that supports and the evidence that detracts 18 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 19 720 (9th Cir. 1996). If the evidence can support either affirming or 20 reversing 21 substitute [its] judgment for that of the ALJ. Robbins, 466 F.3d at 22 882. 23 // 24 // 25 // 26 // 27 // 28 // the ALJ s conclusion, 3 the reviewing court may not 1 III. Discussion 2 A. The ALJ Properly Found that Plaintiff s Impairment Did Not 3 Functionally Equal the Listings 4 Under the Social Security Act, a child under the age of eighteen 5 is considered disabled if that individual has a medically determinable 6 physical or mental impairment, which results in marked and severe 7 functional limitations, and which can be expected to result in death 8 or which has lasted or can be expected to last for a continuous period 9 of not less than 12 months. 42 U.S.C.A. § 1382c(a)(3)(C)(i) (West 10 2008). A disability determination for individuals younger than eighteen 11 requires three findings: (1) the claimant must not be performing 12 substantial gainful work, 20 C.F.R. § 416.924(b); (2) the claimant s 13 impairment, or combination of impairments, must be severe, 20 C.F.R. 14 § 416.924(c); and (3) the claimant s impairment must meet, or be 15 medically or functionally equal to, a listed impairment found in 20 16 C.F.R. Part 404, Subpart P, Appendix 1. When the claimant s impairment 17 does not meet or equal an impairment in the listing, or does not meet 18 the durational requirement, the claimant is determined not to be 19 disabled. 20 C.F.R. § 416.924(d). 20 Whether an impairment functionally equals a listed impairment 21 requires an inquiry into the impairment s effect on six specific areas 22 known as domains of functioning. These domains include: (1) acquiring 23 and 24 interacting and relating with others; (4) moving about and manipulating 25 objects; (5) caring for oneself; and (6) health and physical well- 26 being. 20 C.F.R. § 416.926a(b)(1). To functionally equal a listed 27 impairment, the impairment must result in marked limitations in two 28 domains using or information; an extreme (2) attending limitation 4 in and one completing domain. tasks; 20 (3) C.F.R. § 1 416.926a(a). 2 In concluding that Plaintiff s impairment did not functionally 3 equal the listings, the ALJ relied on a state agency physician s 4 opinion regarding Plaintiff s functional limitations. (AR 17.) Samuel 5 N. Grossman, M.D., determined that Plaintiff had less than marked 6 limitations in the three domains of acquiring and using information, 7 attending and completing tasks, and interacting and relating with 8 others, but he had no limitation in the three domains of moving about 9 and manipulating objects, caring for himself, and health and physical 10 well-being. (AR 140-42.) Based on these determinations, Dr. Grossman 11 concluded that Plaintiff s impairment did not functionally equal the 12 listings. (AR 17-19.) 13 The ALJ made several findings in concluding that Plaintiff s 14 impairment did not functionally equal the listings. These include a 15 finding that Plaintiff s functional ability is not extremely limited 16 in at least one or markedly limited in at least two of aforementioned 17 six 18 functional equality. (AR 18-19.) Plaintiff takes issue only with this 19 finding, arguing that the record demonstrated marked limitations in 20 three of the six domains, which, if true, would render Plaintiff 21 disabled. (Joint Stip. 24-25.) Plaintiff argues that the majority of 22 the evidence supports his argument. (Id.) domains, as required by the regulations for a finding of 23 Plaintiff relies on a teacher questionnaire completed by Faith 24 P. Mischel-Golden, M.A., which outlined her observations of Plaintiff s 25 impairments. (AR 154-60.) The questionnaire addresses each of the six 26 domains by asking the respondent to rate the claimant s abilities in 27 several specific areas within each domain on the following scale: (1) 28 no problem; (2) a slight problem; (3) an obvious problem; (4) a serious 5 1 problem; and (5) a very serious problem. Ms. Golden s ratings of 2 Plaintiff s abilities overall showed relatively mild limitations, 3 indicating that Plaintiff had no more than an obvious problem in any 4 area, and slight or no problems in most areas. (Id.) 5 Plaintiff does not dispute that Ms. Golden rated his impairments 6 as obvious or slight, rather than serious or very serious. 7 Instead, Plaintiff argues that the regulations do not define obvious, 8 and that Ms. Golden s minimal comments on the form demonstrate that 9 Plaintiff does indeed have a marked impairment. (Joint Stip. 15-25.) 10 The Court is not convinced that an obvious problem translates 11 into a marked limitation as defined in the regulations. A marked 12 limitation occurs when an impairment interferes seriously with your 13 ability to independently initiate, sustain, or complete activities, 14 and is more than moderate but less than extreme. Id. § 416.926a(e)(2) 15 (emphasis added). An extreme limitation occurs when an impairment 16 interferes very seriously with your ability to independently initiate, 17 sustain, or complete activities. Id. § 416.926a(e)(3) (emphasis 18 added). Ms. Golden had the option of indicating that Plaintiff had 19 either a serious or very serious problem, but she instead chose the 20 lesser designations of obvious, slight, or no problem when 21 characterizing Plaintiff s limitations. Ms. Golden s comments beneath 22 her ratings simply provide additional insight into her perceptions of 23 those limitations, without purporting to modify the ratings. Contrary 24 to Plaintiff s contentions, Ms. Golden did not indicate that Plaintiff 25 suffered from any marked or severe limitations. Plaintiff s attempt 26 to recharacterize the form s content is without merit. 27 Plaintiff also relies on an evaluation completed by the Los 28 Angeles Unified School District, Division of Special Education in 6 1 arguing that his limitations are marked. This two-page assessment 2 describes the nature of Plaintiff s limitations and concludes 3 [Plaintiff] does present as a child with moderate delays in 4 all 5 development. He is a child who may benefit from special 6 education 7 program. areas of receptive, services in a expressive speech and and articulation language enriched 8 (AR 165.) Nothing in the description of Plaintiff s impairments or this 9 conclusion suggests that Plaintiff s limitations are either marked 10 or severe. 11 Similarly, Plaintiff s reliance on a Preschool Team Assessment 12 Report completed by Nikoline Loba is misplaced. (AR 161-63, 166.) Ms. 13 Loba 14 concluding, described both Plaintiff s abilities and his limitations, 15 Using alternative measures of assessment [Plaintiff s] 16 cognitive ability may be ... within the average range. Self 17 help skills, and motor skills are his strengths at this 18 time as reported by his mother and observation. [Plaintiff] 19 appears to be delayed in pre[-]academics, social skills and 20 communication skills, which may be affecting his ability to 21 access a preschool curriculum. [Plaintiff] does qualify for 22 special education services at this time as a child who 23 [has] developmental delays of 25 percent in these areas. 24 These 25 educational performance and cannot be corrected without 26 special education services. delays appear to be adversely affecting his 27 (AR 166.) Again, this assessment does not suggest that Plaintiff s 28 limitations were marked or severe. 7 1 Plaintiff essentially argues that the mere existence of the 2 limitations 3 regulations. The reports Plaintiff cites reveal only that Plaintiff 4 does have limitations, not that they are marked. Plaintiff discusses 5 at length the abilities a normal child of that age should have, arguing 6 that Plaintiff s deficiencies in several areas clearly demonstrates the 7 severity of his limitations. The parties do not dispute that Plaintiff 8 has limitations; the ALJ found that his impairment was severe under 9 the translates regulations. into However, a the marked record impairment simply does under not show the that 10 Plaintiff s impairments were marked or severe, as required for a 11 finding of functional equivalence. 12 The ALJ s conclusion that Plaintiff s impairment did not 13 functionally equal the listings is supported by substantial evidence 14 in the record. Plaintiff is not entitled to relief on this claim. 15 B. 16 Plaintiff contends that the ALJ s decision is not supported by 17 substantial evidence because the ALJ did not adequately consider and 18 clearly reject particular evidence in the record, and because the ALJ 19 did not seek the opinion of a consulting pediatrician. (Joint Stip. 4.) 20 As discussed below, Plaintiff s arguments are without merit. 21 Substantial Evidence Supports the ALJ s Decision 1. The ALJ Adequately Considered the Record 22 In concluding that Plaintiff was not disabled, the ALJ relied on 23 the opinion of a non-examining state agency physician, Dr. Grossman, 24 who completed the Childhood Disability Evaluation Form on November 8, 25 2004. 26 impairments included speech 27 impairments did not meet, medically equal, or functionally equal the 28 listings. (AR 138.) The ALJ also discussed the opinion of a school (AR 138-43.) Dr. Grossman and opined that Plaintiff s severe language delays, but that those 8 1 psychologist, Nikoline Loba, and referenced several other exhibits in 2 the record in reaching his decision. 3 Plaintiff contends that the ALJ erred by failing to adequately 4 discuss, and properly reject, several reports in the record. (Joint 5 Stip. 4.) Specifically, Plaintiff claims the ALJ should have discussed 6 the 7 questionnaire 8 Preschool Team Assessment Report completed by Nikoline Loba, also 9 discussed above; (3) an Infant Toddler Preschool Programs speech and 10 language report; and (4) a special education assessment plan, which 11 included 12 Plaintiff acknowledges that the ALJ referenced Exhibit 3F, in which all 13 of these documents are located, but Plaintiff asserts that it is not 14 clear in the decision which document in Exhibit 3F the ALJ was actually 15 referring to.... (Joint Stip. 5.) Plaintiff argues that the ALJ should 16 have given specific and legitimate reasons for rejecting each of these 17 reports individually. (Joint Stip. 9-10.) following an documents filled out in by individualized further Ms. detail: Golden, education (1) discussed program. the teacher above; (Joint Stip. (2) a 10.) 18 The Court first notes that ALJ is not required to discuss every 19 piece of evidence in the record. Vincent ex rel. Vincent v. Heckler, 20 739 F.2d 1393, 1394 (9th Cir. 1984)(per curiam). Additionally, it is 21 clear that the ALJ did consider the reports. The ALJ referenced Exhibit 22 3F not once, but twice in the decision. Each time, the ALJ discussed 23 specific aspects of the reports in the exhibit, such as Ms. Loba s 24 description 25 general, and his improvements over time. (AR 18-19.) The ALJ was not 26 required to identify each report by name. 27 28 of Moreover, Plaintiff s the reports impairments, at issue Plaintiff s are lay abilities opinions in regarding Plaintiff s limitations. Plaintiff acknowledges that these types of 9 1 reports do not receive the same weight and consideration as physicians 2 opinions. See Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). 3 (Joint Stip. 9.) Nevertheless, Plaintiff correctly notes that the ALJ 4 must give some reason for rejecting even lay opinions in reaching a 5 disability determination. See Lewis v. Apfel, 236 F.3d 503, 511 (9th 6 Cir. 2001). What Plaintiff fails to demonstrate is that the ALJ 7 actually rejected these opinions. As discussed in detail above, the 8 ALJ s findings are not inconsistent with any of these reports. The ALJ 9 concluded that Plaintiff had a severe impairment of speech and language 10 delay, but that the impairment did not meet, medically equal, or 11 functionally equal the listings. (AR 17.) Nothing in the reports 12 contradicts 13 supported by substantial evidence in the record. Accordingly, Plaintiff 14 is not entitled to relief on this claim. 15 16 2. the ALJ s findings, and in fact those findings are The ALJ Was Not Required to Obtain a Medical Opinion from a Different Physician 17 Plaintiff argues that the ALJ s reliance on Dr. Grossman s 18 opinion was improper because Dr. Grossman is a surgeon rather than a 19 pediatrician. (Joint Stip. 8.) The Social Security Act states, In 20 making any determination under this subchapter with respect to the 21 disability of an individual who has not attained the age of 18 years 22 ... the Commissioner of Social Security shall make reasonable efforts 23 to ensure that a qualified pediatrician or other individual who 24 specializes in a field of medicine appropriate to the disability of the 25 individual ... evaluates the case of such individual. 42 U.S.C.A. § 26 1382c(a)(3)(I) (West 2008). Plaintiff contends that Dr. Grossman, as 27 a surgeon, is not a qualified pediatrician, nor is there evidence that 28 he specializes in a field of medicine appropriate to the disability 10 1 of the individual. (Joint Stip. 8-9.) 2 In response, Defendant notes that a second consultant, Georgianne 3 B. Huskey, S.L.E., also signed Dr. Grossman s evaluation of Plaintiff. 4 (Joint Stip. 13; AR 139.) According to Defendant, the S.L.E. after 5 Ms. Huskey s name indicates that she is a Certified Speech and Language 6 Specialist in the State of California. (Id.) The regulations state that 7 a qualified speech and language pathologist is an acceptable medical 8 source for determining whether a claimant suffers from a speech or 9 language impairment. 20 C.F.R. § 416.913(a)(5). Furthermore, a speech 10 and 11 specializes in a field of medicine appropriate to the disability of the 12 individual. 13 language specialist Plaintiff s single would certainly reference to Ms. be an individual Hurskey in the who Joint 14 Stipulation states that there is no indication that this individual 15 is a physician as they have not indicated any medical specialty. 16 (Joint Stip. 9.) In the reply section of his argument on this issue, 17 however, Plaintiff does not dispute Defendant s assertions regarding 18 Ms. Huskey s qualifications as a speech and language specialist. 19 Accordingly, the Court accepts Defendant s representation that the 20 S.L.E. designation after Ms. Huskey s name indicates that she is in 21 fact a certified speech and language specialist. The ALJ did not err 22 by relying on this medical opinion. 23 The Court concludes that the ALJ s decision is supported by 24 substantial evidence in the record. Plaintiff s arguments are without 25 merit. 26 // 27 // 28 // 11 1 C. 2 The ALJ Gave Proper Weight to the Opinion of Plaintiff s Mother 3 On November 29, 2004, Plaintiff s mother, Cassandra Ivory, wrote 4 a letter in support of Plaintiff s SSI claim. (AR 133-34.) In the 5 letter, Ms. Ivory characterized Plaintiff as slow, with a short 6 attention span and impulsive behavior. She stated, It is obvious that 7 [Plaintiff] cannot function in a regular classroom setting because of 8 his marked and severe functional limitations and disabilities that is 9 hindering him. (AR 133.) 10 The ALJ rejected Ms. Ivory s statements in reaching the 11 disability determination due to inconsistencies between Ms. Ivory s 12 opinion and the claimant s functional limitations and because her 13 opinions and statements rest on non-medical factors. (AR 18.) The ALJ 14 noted that Plaintiff s medical record did not show that he had marked 15 and severe functional limitations, as claimed by Ms. Ivory. The ALJ 16 concluded that Ms. Ivory s statements were not persuasive, and he 17 disregarded them. (Id.) 18 Plaintiff argues that the ALJ s rejection of Ms. Ivory s lay 19 opinion regarding his limitations was improper, because the ALJ did not 20 provide specific examples of contradictions between her statements and 21 the record. (Joint Stip. 27.) Plaintiff s mother, as a non-medical lay 22 witness, 23 limitations, which the ALJ is required to consider. See Nguyen v. 24 Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Lay testimony as to a 25 claimant s symptoms is competent evidence that an ALJ must take into 26 account, unless he or she expressly determines to disregard such 27 testimony and gives reasons germane to each witness for doing so. 28 Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also Dodrill v. can provide testimony about 12 Plaintiff s symptoms and 1 Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). An ALJ may appropriately 2 reject a family member s opinion if it conflicts with the medical 3 record. Lewis, 236 F.3d at 512; Dodrill, 12 F.3d at 918-19. 4 As discussed above, the ALJ rejected Ms. Ivory s opinion 5 regarding the extent of Plaintiff s functional limitations because the 6 record contradicted her statements. Specifically, the ALJ stated that 7 the record showed Plaintiff did not suffer from marked and severe 8 functional limitations, as claimed by Ms. Ivory. (AR 19.) Plaintiff 9 is correct that the ALJ did not explain in minute detail the particular 10 pieces of evidence that specifically contradicted Ms. Ivory s claim. 11 However, the decision does discuss the ALJ s reasons for concluding 12 that 13 functional limitations. The ALJ explained, Plaintiff s impairments did not lead to marked and severe 14 The 15 demonstrated 16 complete most tasks with redirection and responded [sic]. 17 The claimant s performance improved as he became more 18 familiar with his environment and the therapist. (Exhibit 19 3F). Additional reports indicated that the claimant was 20 able to brush his teeth, care for himself, feed himself, 21 and perform activities of daily living. The claimant s fine 22 motor skills were age level as well as his gross motor 23 skills. 24 25 claimant s reports adequate show that functioning the in claimant his ability has to (AR 19.) The ALJ did not specifically explain how Ms. Ivory s opinion that 26 Plaintiff 27 contradicted by the record. However, the ALJ was not required to 28 provide an exhaustive, in-depth analysis of his rationale for rejecting had marked and severe 13 functional limitations was 1 her opinion. The ALJ was only required to expressly reject the opinion 2 and provide a germane reason for doing so. Lewis, 236 F.3d at 510-11. 3 The ALJ complied with this obligation: he stated that Ms. Ivory s 4 opinion was unpersuasive, and he explained that the record contradicted 5 her opinion. The ALJ also discussed his reasons for concluding that 6 Plaintiff s limitations were not marked. The ALJ was not required to 7 do more, and his conclusions were supported by substantial evidence in 8 the record. The ALJ did not err in his treatment of Ms. Ivory s lay 9 opinion. Plaintiff is not entitled to relief on this claim. 10 11 12 13 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. 14 15 Dated: October 21, 2008 16 17 18 ________________________ Marc L. Goldman United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 14
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