Noel Buckley v. Michael J Astrue, No. 5:2008cv01523 - Document 28 (C.D. Cal. 2009)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle: IT IS ORDERED that:1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. (See document for further details.) (pcl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 NOEL BUCKLEY O/B/O K.J.B., ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 08-1523 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that the Commissioner s decision 23 should be reversed and this matter remanded for further proceedings. 24 25 I. Plaintiff seeks As BACKGROUND This action was brought on behalf of Plaintiff K.J.B., who was 26 born on February 28, 2000. [AR 13.] 27 the basis of asthma, obstructive sleep apnea syndrome, hearing 28 problems, allergies and concentration problems. [AR 104.] 1 Plaintiff alleges disability on II. 1 2 PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on October 29, 2008, and filed 3 on November 7, 2008. On April 7, 2009, Defendant filed an answer and 4 Plaintiff s Administrative Record ( AR ). 5 parties filed their Joint Stipulation ( JS ) identifying matters not 6 in dispute, issues in dispute, the positions of the parties, and the 7 relief sought by each party. 8 Stipulation was withdrawn, and a second Joint Stipulation was filed 9 that was identical to the initial Joint Stipulation except with On August 10, 2009, the On August 18, 2009, the Joint 10 redactions of Plaintiff s name. 11 submission without oral argument. 12 III. 13 This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) under 14 Title XVI of the Social Security Act on October 7, 2005, alleging 15 disability since February 18, 2003. [AR 10, 82.] 16 application was denied initially and on reconsideration, Plaintiff 17 requested an administrative hearing, which was held on November 15, 18 2007, before Administrative Law Judge ( ALJ ) Lowell Fortune. 19 31.] 20 [AR 49.] 21 ALJ Fortune. [AR 51.] 22 was taking from Plaintiff s mother and medical expert Colin Hubbard. 23 [AR 52.] 24 [AR 10-20.] 25 2008, the ALJ s decision became the Commissioner s final decision. [AR 26 2.] After the [AR The hearing was continued to obtain additional medical records. A supplemental hearing was held on January 11, 2008, before Plaintiff appeared with counsel, and testimony The ALJ denied benefits in a decision dated May 23, 2008. When the Appeals Council denied review on August 29, 27 28 2 IV. 1 2 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner s (or 4 ALJ s) findings and decision should be upheld if they are free of 5 legal error and supported by substantial evidence. 6 court determines that a finding is based on legal error or is not 7 supported by substantial evidence in the record, the court may reject 8 the finding and set aside the decision to deny benefits. 9 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. However, if the See Aukland 10 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 11 F.3d 1157, 1162 (9th Cir. 12 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 13 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 14 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 15 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720. It is relevant evidence 16 preponderance. 17 which a reasonable person might accept as adequate to support a 18 conclusion. 19 a finding, a court must review the administrative record as a whole, 20 weighing both the evidence that supports and the evidence that 21 detracts from the Commissioner s conclusion. 22 can reasonably support either affirming or reversing, the reviewing 23 court may not substitute its judgment for that of the Commissioner. 24 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports V. 25 Id. If the evidence DISCUSSION 26 A. THE THREE-STEP EVALUATION FOR CHILDREN S DISABILITY 27 A claimant under the age of eighteen years shall be considered 28 disabled if he or she has a medically determinable impairment which 3 1 results in marked and severe functional limitations, and which can be 2 expected to result in death or which has lasted or can be expected to 3 last for a continuous period of at least twelve months. 4 rel. Merril v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000)(citing 42 5 U.S.C. § 1382c(a)(3)(C)(i)). 6 7 8 9 10 11 12 13 Merril ex Children s disability claims are evaluated using a three-step test: Step one: If the child is engaging in substantial gainful activity, the child will be found not disabled regardless of his medical condition, age, education or work experience. Step two: If the child is not engaging in substantial gainful activity, the next inquiry is to determine whether the child has a severe impairment. If the impairment is a slight abnormality or combination of slight abnormalities which causes no more than minimal functional limitations , the child will be determined not to have a severe impairment and, therefore, not disabled . If the child has a severe impairment, the inquiry proceeds to step three. 14 15 16 17 Step three: The child s impairment must meet, medically equal or functionally equal the severity of an impairment in 20 C.F.R. Pt. 404, Subpt. P, Appendix 1. If the child s impairment meets, medically equals, or functionally equals the severity of a listed impairment, and the impairment meets the twelve month durational requirement, then the child is found to be disabled . Otherwise, the child will be found not disabled . 18 20 C.F.R. § 416.924. 19 Even if an impairment does not meet the requirements of, or is 20 not medically equal to, a listed impairment, the claimant may be 21 disabled if his or her impairment or combination of impairments is 22 functionally equivalent to a listed impairment. 20 C.F.R. § 416.926a; 23 see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th 24 Cir. 2003); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 25 1151 (C.D. Cal. 2008); Smith ex rel. Enge v. Massanari, 139 F. Supp. 26 2d 1128, 1135 (C.D. Cal. 2001). Functional equivalence is measured by 27 assessing the claimant s ability to function in terms of the following 28 4 1 six domains, which are broad areas of functioning intended to capture 2 all of what a child can or cannot do : (i) acquiring and using 3 information; (ii) attending and completing tasks; (iii) interacting 4 and relating with others; (iv) moving about and manipulating objects; 5 (v) caring for oneself; and (vi) health and physical well-being. 20 6 C.F.R. § 416.926a(b)(1). 7 functionally equals a Listing if it results in marked limitations in 8 two domains of functioning or an extreme limitation in one domain. 9 20 C.F.R. § 416.926a(a). An impairment or combination of impairments 10 B. 11 Here, the ALJ found that Plaintiff had no history of substantial THE ALJ S EVALUATION IN PLAINTIFF S CASE 12 gainful activity (step one); and that Plaintiff had severe 13 impairments, namely obstructive sleep apnea, conductive hearing loss, 14 rhinitis and asthma (step two). [AR 13.] 15 that Plaintiff did not have an impairment or combination of 16 impairments that meets, medically equals, or functionally equals a 17 listed impairment (step three). [Id.] 18 of functioning for childhood disability claims, the ALJ found that 19 Plaintiff s limitations included the following: (1) significant but 20 less than marked limitation in acquiring and using information; (2) 21 significant but less than marked limitation in attending and 22 completing tasks; (3) no significant limitation in interacting and 23 relating with others; (4) no significant limitation in moving about 24 and manipulating objects; (5) no significant limitation in the ability 25 to care for himself; and (6) significant but less than marked 26 limitation in health and physical well-being. [AR 15-20.] 27 Accordingly, Plaintiff was found not disabled as defined by the 28 Social Security Act. [AR 20.] 5 At step three, the ALJ found As to the six specific domains 1 C. 2 The parties Joint Stipulation identifies the following disputed 3 issues: 4 1. ISSUES IN DISPUTE 5 6 Whether the ALJ properly considered the testimony of Plaintiff s mother; 2. 7 Whether the ALJ properly considered the opinion of Plaintiff s teacher; and 8 3. 9 [JS 2.] Whether the ALJ properly developed the record. 10 As discussed below, Issue One is dispositive. 11 D. 12 At the administrative hearing, Plaintiff s mother testified that TESTIMONY OF PLAINTIFF S MOTHER 13 Plaintiff was unable to sleep at night and that he stops breathing. 14 [AR 38.] 15 Plaintiff was three years old and that several remedies had been 16 explored, including three sleep studies. [Id.] 17 also completed questionnaires stating, among other things, that with 18 respect to the six domains of functioning referenced above, Plaintiff 19 has shortness of breath, is often sleepy, has hearing problems, speaks 20 too loudly, has trouble understanding, is inattentive, has trouble 21 with concentration, is hyperactive in class, cannot care for himself 22 without help, and fails to listen. [AR 128, 141-47.] Plaintiff s mother testified that the condition began when Plaintiff s mother 23 The administrative decision did not directly reference the 24 testimony of Plaintiff s mother but concluded that, statements 25 concerning the intensity, persistence and limiting effects of the 26 claimant s symptoms are not credible to the extent they are 27 inconsistent with the finding that the claimant has not had an 28 impairment or combination of impairments that functionally equals the 6 1 listings. [AR 14.] 2 properly account for the testimony of Plaintiff s mother. [JS 3-4.] 3 Plaintiff asserts that the ALJ s decision did not The testimony of lay witnesses, including family members, about 4 their own observations regarding the claimant s impairments 5 constitutes competent evidence that must be taken into account and 6 evaluated by the Commissioner in the disability evaluation. 7 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006); Stout v. 8 Commissioner, Social Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). 9 Such testimony cannot be discounted unless the ALJ gives reasons that Robbins 10 are germane to that witness.1 11 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Stout v. Commissioner, 12 454 F.3d at 1053 (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th 13 Cir. 1993)); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 14 Where the claimant is a child who is unable to adequately describe his 15 symptoms, the Commissioner accepts the testimony of a person most 16 familiar with the child s condition, such as a parent. 17 416.928(a); Smith ex rel. Enge v. Massanari, 139 F. Supp. 2d at 1134. 18 In such circumstances, the testimony of parents is a particularly 19 valuable source of information in the evaluation because they usually 20 see the child every day. 21 22 Carmickle v. Commissioner, Social Sec. 20 C.F.R. § 20 C.F.R. § 416.924a(a)(2)(i). In this case, the ALJ s implicit rejection of the testimony of Plaintiff s mother without reasons germane to this witness did not 23 24 25 26 27 28 1 Although Plaintiff asserts that the correct legal standard for evaluation of the testimony of Plaintiff s mother is the clear and convincing credibility standard of Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)(en banc), the Ninth Circuit has clearly held that testimony by third parties, including parents of child claimants, is evaluated under the standard applicable to lay witnesses. See Merrill ex rel. Merrill v. Apfel, 224 F.3d at 1086 (citing Dodrill v. Shalala, 12 F.3d at 919); Smith ex rel. Enge v. Massanari, 139 F. Supp. 2d at 1134. 7 1 satisfy this standard. Proper consideration of this evidence was 2 particularly important because Plaintiff is young, unable to 3 articulate his own symptoms, and entirely reliant on his mother to 4 present his claim. 5 4196823 at *11 (E.D. Cal. 2008)(reversing ALJ s decision where 6 evaluation of child claimant s abilities in functional domains did not 7 account for relevant testimony of claimant s mother). 8 circumstances, remand for further proceedings is appropriate. 9 ex rel. Merrill v. Apfel, 224 F.3d at 1086 (remanding for evaluation 10 of child claimant s claim under Listing of Impairments where, among 11 other things, ALJ failed to provide specific explanation for rejecting 12 testimony of claimant s mother); Smith ex rel. Enge v. Massanari, 139 13 F. Supp. 2d at 1135 (same). See Kha Xiong ex rel. Pha Yang v. Astrue, 2008 WL Under these Merrill 14 E. REMAND FOR FURTHER PROCEEDINGS 15 The decision whether to remand for further proceedings is within Harman v. Apfel, 211 F.3d 1172, 16 the discretion of the district court. 17 1175-1178 (9th Cir. 2000). 18 further proceedings, or where the record has been fully developed, it 19 is appropriate to exercise this discretion to direct an immediate 20 award of benefits. 21 remand for further proceedings turns upon their likely utility). 22 However, where there are outstanding issues that must be resolved 23 before a determination can be made, and it is not clear from the 24 record that the ALJ would be required to find the claimant disabled if 25 all the evidence were properly evaluated, remand is appropriate. 26 Here, as set out above, outstanding issues remain before a finding of Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 27 28 8 Id. 1 disability can be made.2 2 Accordingly, remand is appropriate. VI. ORDERS 3 Accordingly, IT IS ORDERED that: 4 1. The decision of the Commissioner is REVERSED. 5 2. This action is REMANDED to defendant, pursuant to Sentence 6 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 7 above. 8 9 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 10 11 12 13 DATED: November 3, 2009 __________/S/____________________ CARLA M. WOEHRLE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 None of the remaining issues presented in the parties Joint Stipulation, assuming they were meritorious, would clearly direct a finding of disability on the basis of the existing record. 9

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