I.M.M. v. Michael J Astrue, No. 2:2011cv05334 - Document 24 (C.D. Cal. 2012)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (am)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 I.M.M., by and through her guardian ad litem, Patrice Young, 13 Plaintiff, 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) Case No. CV 11-5334-SP ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION 21 On July 1, 2011, plaintiff I.M.M., by and through her guardian ad litem, 22 Patrice Young, filed a complaint against defendant Michael J. Astrue, seeking a 23 review of a denial of Supplemental Security Income ( SSI ) benefits. Both plaintiff 24 and defendant have consented to proceed for all purposes before the assigned 25 Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties briefing is now 26 complete, and the court deems the matter suitable for adjudication without oral 27 argument. 28 The sole issue presented for decision here is whether the Administrative Law 1 Judge ( ALJ ) properly found at step three that plaintiff s impairments do not 2 functionally equal any listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 3 1. Pl. s Mem. at 3-7; Def. s Mem. at 2-6; Reply at 3-5. 4 Having carefully studied, inter alia, the parties written submissions and the 5 Administrative Record ( AR ), the court concludes that, as detailed herein, there is 6 substantial evidence in the record, taken as a whole, to support the ALJ s finding at 7 step three. The court therefore affirms the Commissioner s decision denying 8 benefits. 9 II. 10 FACTUAL AND PROCEDURAL BACKGROUND 11 Plaintiff, who was eleven years old on the date of her June 18, 2009 12 administrative hearing, has been enrolled in special education classes since starting 13 school. AR at 34-35. 14 On April 28, 2008, Patrice Young applied for SSI on behalf of plaintiff, 15 alleging plaintiff s disability a learning disability, which causes plaintiff to be 16 very slow and work[] at several grade levels below her age and grade began on 17 April 9, 2008. See AR at 94-100, 103. The application was denied initially and 18 upon reconsideration, after which Ms. Young filed a request for a hearing on behalf 19 of plaintiff. Id. at 47, 48, 49-52, 53, 56-61, 62. 20 On June 18, 2009, plaintiff and Ms. Young, represented by counsel, appeared 21 and testified at a hearing before the ALJ. AR at 32-43, 43-45, 46. On July 30, 22 2009, the ALJ denied plaintiff s claim for benefits. Id. at 14-28. Applying the three-step sequential evaluation process,1/ the ALJ found, at step 23 24 25 1/ An individual under the age of 18 shall be considered disabled . . . if that 26 individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to 27 result in death or which has lasted or can be expected to last for a continuous period 28 of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i). In determining 2 1 one, that plaintiff has not engaged in substantial gainful activity at any time relevant 2 to the ALJ s decision. AR at 18. 3 At step two, the ALJ found that plaintiff suffers from the following severe 4 impairments: speech and language impairments, and delay in reading, math, and 5 written language. AR at 18. 6 At step three, the ALJ found that plaintiff s impairments, either individually 7 or in combination, do not meet or medically equal a Listing, and also do not 8 functionally equal a Listing. AR at 18. Specifically, the ALJ found that plaintiff: 9 has less than marked limitation in Acquiring and Using Information; has less than 10 marked limitation in Attending and Completing Tasks; has less than marked 11 limitation in Interacting and Relating with Others; has no limitation in Moving 12 About and Manipulating Objects; has no limitation in the ability to Care for Herself; 13 and has no limitation in Health and Physical Well-Being. Id. at 20-21, 22, 23-24, 14 25, 26, 27. Thus, the ALJ concluded that plaintiff was not suffering from a 15 16 eligibility for SSI based on a childhood disability, the Commissioner applies a three-step evaluation process. 20 C.F.R. § 416.924(a). 17 18 19 20 21 22 At step one, the Commissioner considers whether the child has engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If not, then at step two, the Commissioner considers whether the medically determinable impairment or combination of impairments is severe. 20 C.F.R. § 416.924(c). If severe, step three requires the Commissioner to determine whether the impairment meets, medically equals, or functionally equals the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the Listings ). 20 C.F.R. § 416.924(d). 23 24 25 26 27 28 An impairment functionally equals a Listing if the child has marked limitations in two out of six functional domains or an extreme limitation in one domain. 20 C.F.R. § 416.926a(a). The six functional domains are: (1) Acquiring and Using Information; (2) Attending and Completing Tasks; (3) Interacting and Relating with Others; (4) Moving About and Manipulating Objects; (5) Caring for Himself or Herself; and (6) Health and Physical Well-Being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). 3 1 disability as defined by the Social Security Act. Id. at 27. 2 Plaintiff filed a timely request for review of the ALJ s decision, which was 3 denied by the Appeals Council. AR at 1-3, 10. The ALJ s decision stands as the 4 final decision of the Commissioner. 5 III. 6 STANDARD OF REVIEW 7 This court is empowered to review decisions by the Commissioner to deny 8 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 9 Administration must be upheld if they are free of legal error and supported by 10 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 11 But if the court determines that the ALJ s findings are based on legal error or are 12 not supported by substantial evidence in the record, the court may reject the findings 13 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 14 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 15 Substantial evidence is more than a mere scintilla, but less than a 16 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 17 evidence which a reasonable person might accept as adequate to support a 18 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 19 F.3d at 459. To determine whether substantial evidence supports the ALJ s finding, 20 the reviewing court must review the administrative record as a whole, weighing 21 both the evidence that supports and the evidence that detracts from the ALJ s 22 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 23 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 24 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 25 evidence can reasonably support either affirming or reversing the ALJ s decision, 26 the reviewing court may not substitute its judgment for that of the ALJ. Id. 27 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 28 4 1 IV. 2 DISCUSSION 3 Plaintiff contends the ALJ s step-three finding that plaintiff s impairments 4 do not functionally equal a Listing is not supported by substantial evidence. Pl. s 5 Mem. at 3-7; Reply at 3-5. Specifically, plaintiff argues that the ALJ erred in 6 relying on the opinion of state agency consultant Dr. R.E. Brooks (who opined in a 7 July 22, 2008 Childhood Disability Evaluation Form that plaintiff had a less than 8 marked limitation in Acquiring and Using Information), and in rejecting the opinion 9 of state agency consultant Dr. P.M. Balson (who opined in a September 8, 2008 10 Childhood Disability Evaluation Form that plaintiff had marked limitation in 11 Acquiring and Using Information). Pl. s Mem. at 5. Plaintiff further argues that in 12 addition to her marked limitation in the domain of Acquiring and Using 13 Information, her medical and school records also support the contention that [she] 14 has marked limitation in attending and completing tasks. Id. at 6. Plaintiff 15 therefore maintains that because she suffers from marked limitations in two domains 16 Acquiring and Using Information and Attending and Completing Tasks her 17 impairments are functionally equivalent to the Listings, and a finding of disability is 18 warranted. Id. This court disagrees. 19 First, the ALJ properly found plaintiff has less than marked limitation in 20 Acquiring and Using Information. See AR at 20-21. In this domain, an ALJ 21 considers how well [a claimant] acquire[s] or learn[s] information, and how well 22 [the claimant] use[s] the information [he or she has] learned. 20 C.F.R. 23 § 416.926a(g). Examples of limited functioning in acquiring and using 24 information include: (1) the claimant does not demonstrate understanding of words 25 about space, size, or time; e.g., in/under, big/little, morning/night; (2) the claimant 26 cannot rhyme words or the sounds in words; (3) the claimant has difficulty recalling 27 important things he or she has learned in school the previous day; (4) the claimant 28 has difficulty solving mathematics questions or computing arithmetic answers; and 5 1 (5) the claimant talks only in short, simple sentences and has difficulty explaining 2 what he or she means. 20 C.F.R. § 416.926a(g)(3)(i)-(v). 3 Here, contrary to plaintiff s contention, substantial evidence supports the 4 ALJ s finding with regard to this domain. A speech/language specialist in an 5 April 10, 2008 Speech and Language Three Year Review report stated plaintiff 6 has met on[e] of her previous goals and is able to produce /s/ and /z/ at a 7 conversational level with 80 % accuracy. AR at 187. The ALJ noted a June 16, 8 2008 Speech and Language Evaluation Form Infants and Children indicated 9 plaintiff had moderate to severe delays in the areas of receptive/expressive 10 vocabulary, syntax, morphology, and visual and auditory processing (id. at 20 11 (citing id. at 213-19)), but that an April 9, 2009 Speech and Language Progress 12 Report from plaintiff s school indicated: [plaintiff] has demonstrated increased 13 participation in speech therapy activities and has a decreased need for verbal cueing 14 in order to provide appropriate responses to questioning ; she has shown growth in 15 her ability to explain her utterances and expand upon her ideas ; she answers wh16 questions about a visual stimili (picture) with 70% accuracy ; and she answers wh17 question about a verbally presented story with 60% accuracy. See id. at 20 (citing 18 id. at 411-12). In a May 7, 2008 Teacher Questionnaire, Joni Alexander (plaintiff s 19 Special Day Class teacher) indicated that except for a serious problem in 20 expressing ideas in written form plaintiff has between slight and obvious 21 problems in areas of Acquiring and Using Information. See id. at 124. Ms. 22 Alexander also stated that despite having to work independently during Reading 23 and Math Workshop, plaintiff knows what she needs to do at that time, and does 24 everything consistently. Id. 25 In addition, as further noted by the ALJ, consultative examining psychologist 26 Dr. Halimah McGee found in a June 5, 2008 Psychological Evaluation that plaintiff: 27 was able to count from one to ten and was able to count backwards from ten to one; 28 knew how many pennies there are in a nickel, but not how many nickels there are in 6 1 a dime; was able to correctly name several objects that were pointed to around the 2 room; was able to remember three out of three objects in three minutes; and was 3 able to write her name, copy a line, and copy a circle. See AR at 21 (citing AR at 4 211). Although plaintiff displayed a mild articulation disorder when she spoke, 5 Dr. McGee stated plaintiff s speech was understandable and ultimately diagnosed 6 plaintiff with only mild phonological disorder.2/ Id. at 211-12. 7 Dr. Brooks, in the July 22, 2008 Childhood Disability Evaluation Form, 8 found plaintiff s impairments speech and language impairment, and specific 9 learning disability are severe but do not meet, medically equal, or functionally 10 equal a Listing. AR at 220. With regard to the first domain, Dr. Brooks opined that 11 plaintiff has less than marked limitation in Acquiring and Using Information. Id. at 12 222. Like Dr. Brooks, Dr. Balson found in the September 8, 2008 Childhood 13 Disability Evaluation Form that plaintiff s impairments are severe but do not meet, 14 medically equal, or functionally equal a Listing. Id. at 236. Dr. Balson did, 15 however, opine that plaintiff has marked limitation in one domain, Acquiring and 16 Using Information. Id. at 238. The ALJ considered both opinions and ultimately 17 accepted Dr. Brooks s opinion and rejected Dr. Balson s opinion for being not 18 consist[ent] with the school and consulting records. Id. at 21; see also Andrews v. 19 Shalala, 53 F.3d 1035, 1041-42 (9th Cir. 1995) (non-examining physician s opinion 20 may constitute substantial evidence only when it is supported by other evidence in 21 the record and [is] consistent with it ). As discussed above, contrary to plaintiff s 22 contention and inconsistent with Dr. Balson s finding, the record supports less than 23 marked limitation in the domain of Acquiring and Using Information. To the extent 24 the evidence here is susceptible to more than one rational interpretation, the ALJ s 25 2/ The essential feature of Phonological Disorder is a failure to use developmentally expected speech sounds that are appropriate for the individual s 27 age and dialect . . . . Am. Psychiatric Ass n, Diagnostic and Statistical Manual of 28 Mental Disorders 65 (4th Ed. 2000). 26 7 1 decision must be upheld. See Andrews, 53 F.3d at 1039-40 (ALJ is responsible for 2 resolving conflicts in medical testimony and for resolving ambiguities ; ALJ s 3 decision must be upheld where the evidence is susceptible to more than one rational 4 interpretation); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (same). 5 Second, the ALJ properly determined plaintiff has less than marked limitation 6 in Attending and Completing Tasks. See AR at 22. In this domain, an ALJ 7 considers how well [the claimant is] able to focus and maintain [his or her] 8 attention, and how well [the claimant] begin[s], carr[ies] through, and finish[es] [his 9 or her] activities, including the pace at which [the claimant] perform[s] activities 10 and the ease with which [he or she] change[s] them. 20 C.F.R. § 416.926a(h). 11 Examples of limited functioning in this domain include: (1) the claimant is easily 12 startled, distracted, or overractive to sounds, sights, movements, or touch; (2) the 13 claimant is slow to focus on, or fail to complete activities of interest to the claimant, 14 e.g., games or art projects; (3) the claimant repeatedly becomes sidetracked from his 15 or her activities or the claimant frequently interrupts others; (4) the claimant is 16 easily frustrated and gives up on tasks, including ones the claimant is capable of 17 completing; and (5) the claimant requires extra supervision to keep him or her 18 engaged in an activity. 20 C.F.R. § 416.926a(h)(3)(i)-(v). 19 Here, substantial evidence supports the ALJ s finding that plaintiff has less 20 than marked limitation in Attending and Completing Tasks. During the June 5, 21 2008 Psychological Evaluation, Dr. McGee noted that plaintiff was able to 22 maintain the appropriate levels of attention and concentration throughout the 23 contact period of th[e] evaluation. She was able to follow directions and complete 24 all assigned tasks. AR at 211. Although Dr. McGee opined plaintiff will 25 continue to require a special education program and more than the usual attention 26 from her teacher, Dr. McGee stated that plaintiff was able to follow instructions 27 and she would be able to interact adequately with her peers to not cause excessive 28 disruption. Id. at 212. Further, aside from noting plaintiff has an obvious problem 8 1 completing work accurately without careless mistakes, Ms. Alexander indicated in 2 the May 7, 2008 Teacher Questionnaire that plaintiff has either no problems or 3 slight problems in areas of Attending and Completing Tasks. Id. at 125. Ms. 4 Alexander explained as the ALJ noted (id. at 22) that plaintiff may need to be 5 redirected at time[s] to stop talking and stay on task, but that [i]t is not a major 6 problem [and plaintiff] normally gets her work done in a timely manner. Id. at 125. 7 Moreover, Dr. Brooks found plaintiff has less than marked limitation in Attending 8 and Completing Tasks and Dr. Balson found plaintiff has no limitation in this 9 domain. Id. at 222, 238; see also Andrews, 53 F.3d at 1042. 10 Accordingly, the court finds that the ALJ s step-three finding that plaintiff 11 does not functionally equal the Listings is supported by substantial evidence. 12 V. 13 CONCLUSION 14 IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING 15 the decision of the Commissioner denying benefits, and dismissing this action with 16 prejudice. 17 18 Dated: May 29, 2012 19 ____________________________________ 20 SHERI PYM UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.