Carine Waters v. Michael J Astrue, No. 5:2007cv01281 - Document 23 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. IT IS HEREBY ORDERED that Commissioner's decision is affirmed. (See Order for details.) (mp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARINE WATERS O/B/O E.W., 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 07-1281 AGR MEMORANDUM OPINION AND ORDER 18 19 Carine Waters filed this action on October 12, 2007, on behalf of her son 20 E.W.1 At the same time, the Court granted Waters application to be appointed 21 guardian ad litem for E.W. (Dkt. No. 8.) Pursuant to 28 U.S.C. § 636(c), the 22 parties consented to proceed before Magistrate Judge Rosenberg on November 23 1 and December 13, 2007. On June 19, 2008, the parties filed a Joint Stipulation 24 ( JS ) that addressed the disputed issues. The Court has taken the matter under 25 submission without oral argument. 26 27 28 1 The Court will refer to Carine Waters as Waters and to her son as E.W. 1 2 Having reviewed the entire file, the Court affirms the Commissioner s decision. 3 I. 4 PROCEDURAL BACKGROUND 5 On October 29, 2004, an application for supplemental security income 6 benefits was filed on behalf of E.W. A.R. 11. The application was denied initially 7 and upon reconsideration. Id. The Administrative Law Judge ( ALJ ) conducted 8 a hearing on November 8, 2006, at which Waters and a medical expert testified. 9 A.R. 284-294. On January 9, 2007, the ALJ issued a decision denying benefits. 10 A.R. 8-21. The Appeals Council denied E.W. s request for review. A.R. 4-6. 11 This lawsuit followed. 12 II. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 15 decision to deny benefits. The decision will be disturbed only if it is not supported 16 by substantial evidence, or if it is based upon the application of improper legal 17 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 18 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 19 Substantial evidence means more than a mere scintilla but less than a 20 preponderance it is such relevant evidence that a reasonable mind might 21 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 22 determining whether substantial evidence exists to support the Commissioner s 23 decision, the Court examines the administrative record as a whole, considering 24 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 25 evidence is susceptible to more than one rational interpretation, the Court must 26 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 An individual under the age of 18 shall be considered disabled . . . if that Child Definition of Disability 5 individual has a medically determinable physical or mental impairment, which 6 results in marked and severe functional limitations, and which can be expected to 7 result in death or which has lasted or can be expected to last for a continuous 8 period of not less than 12 months. 42 U.S.C. § 1382c(C)(i).2 An impairment is 9 marked and severe if it meets, medically equals, or functionally equals an 10 impairment listed in 20 C.F.R. § 404, Subpart P, Appendix I. 20 C.F.R. § 11 416.924(d)(1). A claimant meets a listed impairment if the claimant s 12 impairment matches the listed impairment. Id. A claimant medically equals the 13 listed impairment by demonstrating medical findings that are of equal medical 14 significance to the listed impairment. 20 C.F.R. § 416.926(b). 15 A claimant functionally equals a listed impairment by showing either a 16 marked limitation in two functional domains (out of six) or an extreme limitation in 17 one domain. 20 C.F.R. § 416.926a(a); See Warre v. Comm r of the SSA, 439 18 F.3d 1001, 1004 (9th Cir. 2006). The six domains are acquiring and using 19 information, attending and completing tasks, interacting and relating with others, 20 moving about and manipulating objects, caring for yourself, and health and 21 physical well-being. 20 C.F.R. § 416.926a(b)(1)(i-vi). A marked limitation is more 22 than moderate and less than extreme, and occurs when an impairment(s) 23 interferes seriously with your ability to independently initiate, sustain, or complete 24 activities. 20 C.F.R. § 416.926a(e)(2)(i). An extreme limitation occurs when an 25 impairment(s) interferes very seriously with your ability to independently initiate, 26 sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3)(i). 27 2 28 [N]o individual under the age of 18 who engages in substantial gainful activity . . . may be considered to be disabled. 42 U.S.C. § 1382c(C)(ii). 3 1 B. The ALJ s Findings 2 E.W. was born on July 21, 2004. A.R. 14. He had severe impairments of 3 mild cerebral palsy and developmental delay. Id. E.W. did not meet, equal, or 4 functionally equal a listing. Id. With respect to the six domains, E.W. had less 5 than marked limitations in acquiring and using information, no limitation in 6 attending and completing tasks, no limitation in interacting and relating with 7 others, less than marked limitations in moving about and manipulating objects, 8 less than marked limitations in caring for himself, and less than marked limitations 9 in his health and physical well-being. A.R. 15-20. 10 C. 11 Waters argues that the ALJ did not consider lay testimony and 12 13 Plaintiff s Testimony and Questionnaire questionnaires. JS 4. If the ALJ wishes to discount the testimony of lay witnesses, he must give 14 reasons that are germane to each witness. Stout v. Comm r, 454 F.3d 1050, 15 1053 (9th Cir. 2006). [W]here the ALJ s error lies in a failure to properly discuss 16 competent lay testimony favorable to the claimant, a reviewing court cannot 17 consider the error harmless unless it can confidently conclude that no reasonable 18 ALJ, when fully crediting the testimony, could have reached a different disability 19 determination. Id. at 1056. 20 Waters does not explain in what way the lay testimony/statements 21 contradict any of the ALJ s findings. She does not connect the lay observations 22 to any of the six functional domains at issue. Waters has not demonstrated that 23 the ALJ discounted the oral or written lay statements. 24 On November 12, 2004, when E.W. was three months old, Waters 25 completed a Function Report. A.R. 64-68. On March 17, 2005, when E.W. was 26 almost eight months old, Waters completed a Function Report. A.R. 85-89. She 27 stated that E.W. had been given morphine while in her womb at about three 28 4 1 months.3 As a result, he has withdrawals, that include screaming, pulling out his 2 hair, and pulling out the hair of others. His parents have to give him medication 3 so he can sleep, and the medication doesn t always work. The doctor has 4 decreased the amount of opium E.W. takes,4 and the withdrawal symptoms have 5 therefore gotten worse. According to Waters, it requires two people to take care 6 of Elijah. When they give him opium, he daze in and out, but when the 7 medication wears off, its (sic) pure trouble. A.R. 88-89.5 8 9 On November 8, 2006, at the hearing, when E.W. was a little over 2 years and 3 months old, Waters testified that E.W. was having muscle spasms in his 10 feet and the toes curling on top of one another, and he turns his feet in. A.R. 11 288. She testified that when he s walking he will if it starts happening, he will 12 drop right then and there, and complain of the pain in his foot, and I have to stop 13 and massage it. A.R. 288-289. She testified that E.W. tightens up his fists 14 really tight, and he s squeezing like he s trying to take control. . . . [H]e does that 15 a lot. And then he attack. He ll scream and then he ll go for your face. A.R. 16 288. 17 18 19 20 21 22 23 24 25 26 27 28 3 E.W. was born with neonatal abstinence syndrome because of opiate exposure in utero (mother had chronic pancreatitis and was taking large amounts of MS contin [morphine]. A.R. 109. Thus, E.W. became addicted to the pain medication before he was born and had to be slowly weaned from the effects of his morphine addiction. A.R. 140. 4 On February 25, 2005, when E.W. was seven months old, Dr. Luke, a treating physician, advised Waters that E.W. does not need any more tincture of opium. A.R. 154. Dr. Luke acknowledged that Waters still hesitates to do so. Id. The records indicate that, by 2006, E.W. was no longer on that medication. A.R. 230 (1/27/06, has stopped tincture of opium ); see also A.R. 222 (5/24/06). 5 Waters mentions statements made by her common-law husband, but does not cite to any document in the administrative record and does not describe the substance of any of his statements. There is a disability report that states E.W. has been going thru withdrawals - shaking and screeming. A.R. 90. Even assuming this report is from Waters common-law husband, it is cumulative and does not alter the analysis. See Zerba v. Comm r of Social Security Administration, 279 Fed. Appx. 438, 440 (9th Cir. 2008) (failure to address husband s cumulative lay testimony is harmless error); Rohrer v. Astrue, 279 Fed. Appx. 437, 437 (9th Cir. 2008) (cumulative questionnaire). 5 1 In her reply, Waters argues that her descriptions of foot cramps, making 2 fists, screaming and going for a parent s face may have an etiology completely 3 separate and distinct from cerebral palsy. JS 8-9. Waters argument is not 4 supported by any citation to the administrative record and is speculative. E.W. 5 was diagnosed with mild cerebral palsy, with greater involvement of the lower 6 extremities than the upper extremities. A.R. 224; see also A.R. 255. In the 7 medical records dated near Waters March 2005 function report, it was noted that 8 E.W. keeps his hands in fists. A.R. 141. On May 24, 2006, Waters reported that 9 E.W. cries and screams in the middle of the night sometimes and requires some 10 comforting. A.R. 223. Moreover, Waters concedes that cerebral palsy affects 11 muscle movement and may cause stiff or tight muscles and exaggerated 12 reflexes (spasticity). JS 8 n.3. 13 Accordingly, the ALJ did not err. Any error was harmless, as no 14 reasonable ALJ, even when fully crediting the lay testimony/statements, could 15 have reached a different disability determination under the applicable legal 16 standards. See Stout, 454 F.3d at 1056. 17 D. E.W. s Medications 18 Waters argues that the ALJ failed to consider the side effects of E.W. s 19 medications and the impact the side effects could have on E.W. s ability to obtain 20 and sustain full-time competitive employment. JS 10. For a toddler, the issue of 21 ability to sustain full-time competitive employment is irrelevant. Waters does not 22 connect her argument about side effects to any of the six functional domains at 23 issue. 24 Waters relies on a Disability Report Appeal form completed on May 16, 25 2005. A.R. 90-96. In Section 2 of the form, it identifies the following change in 26 E.W. s condition: has been going thru withdrawals shaking and screeming 27 (sic). A.R. 90. The date of the change in condition was December 15, 2004, 28 when E.W. would have been almost four months old. Id. According to the form, 6 1 E.W. was prescribed Phenobarbital and opium, the side effects of which included 2 constipation, sensitivity to light, headaches, dehydration, and sleepiness. A.R. 3 93. 4 According to the medical records, as of December 22, 2004, when E.W. 5 was five months old, he was no longer prescribed Phenobarbital. Compare A.R. 6 178 (10/15/04 exam showing prescription of Phenobarbital with 168 (12/22/04 7 exam showing no prescription of Phenobarbital); see also A.R. 153 (2/25/05 8 exam ( Lately he was off the phenobarbital and currently he is only on minute 9 amount of tincture of opium ). E.W. was also weaned off of the opium. A.R. 153 10 (showing only tincture of opium being given as of 2/25/05); A.R. 230 (1/27/06, 11 has stopped tincture of opium ). 12 In analyzing the six domains, the ALJ relied upon evaluations of E.W. 13 during the period he was taking medications and would have been experiencing 14 alleged side effects. The ALJ relied upon Dr. Taylor s evaluation dated February 15 2, 2005, which noted that, according to Waters, E.W. was on Phenobarbitol and 16 opium. A.R. 15, 17, 18, 141. The ALJ also relied on an evaluation dated 17 December 9, 2005 (A.R. 17, A.R. 280-283) and E.W. s treatment records during 18 the entire time period. A.R. 15-16. 19 In addition, the ALJ relies upon evaluations performed after E.W. stopped 20 taking Phenobarbitol and opium, which would show after effects.6 The ALJ relied 21 upon an evaluation dated May 4, 2006 (A.R. 15-20, A.R. 216-219), and an 22 evaluation dated December 28, 2005. A.R. 17, 270-278; A.R. 273 (noting no 23 current medications). 24 Thus, to the extent that any error occurred, it was harmless. As stated 25 above, Waters does not show how any side effects would change the ALJ s 26 findings in the six domains based on E.W. s performance in evaluations 27 6 28 As of May 2006, the ALJ noted that E.W. had regular bowel movements. A.R. 19-20. 7 1 conducted both while E.W. was on Phenobarbitol and/or opium, and after those 2 medications ceased. Substantial evidence supports the ALJ s decision, and any 3 error does not negate the validity of the ALJ s findings in the six domains. 4 Carmickle v. Comm r of SSA, 533 F.3d 1155, 1162-63 (9th Cir. 2008) (harmless 5 error analysis). Stated differently, no reasonable ALJ, even when fully crediting 6 the side effects, could have reached a different disability determination under the 7 applicable legal standards. See Stout, 454 F.3d at 1056. 8 IV. 9 ORDER 10 IT IS HEREBY ORDERED that Commissioner s decision is affirmed. 11 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 12 Order and the Judgment herein on all parties or their counsel. 13 14 15 DATED: October 30, 2008 ALICIA G. ROSENBERG United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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