Delfina Vega et al v. Michael J. Astrue, No. 5:2011cv00769 - Document 21 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (See document for specifics) (mrgo)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DELFINA VEGA, obo J.G., a minor, 12 13 14 Plaintiff, v. 15 MICHAEL J. ASTRUE, Commissioner of Social Security 16 Administration, 17 18 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 11-769-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On May 26, 2011 plaintiff Delfina Vega, as guardian ad litem on behalf of 22 her minor son, J.G., filed a complaint against defendant Michael J. Astrue, seeking 23 a review of a denial of childhood Supplemental Security Income ( SSI ) benefits. 24 Both plaintiff and defendant have consented to proceed for all purposes before the 25 assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the 26 matter suitable for adjudication without oral argument. 27 28 1 1 Plaintiff presents three disputed issues for decision: (1) whether the 2 Administrative Law Judge ( ALJ ) properly considered plaintiff s testimony and 3 opinion; (2) whether the ALJ properly considered Exhibits 11F, 12F, and 13F; and 4 (3) whether the ALJ should have considered a closed period of disability. 5 Memorandum in Support of Plaintiff s Complaint ( Pl. Mem. ) at 8; Memorandum 6 in Support of Defendant s Answer ( D. Mem. ) at 3-10. 7 Having carefully studied, inter alia, the parties written submissions, the 8 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 9 that, as detailed herein, the ALJ failed to state reasons germane to plaintiff for 10 discounting her credibility, and therefore did not properly consider her testimony. 11 In addition, the ALJ failed to properly consider Exhibits 11F and 12F in that he 12 failed to obtain a medical expert s case evaluation based on the entire record. 13 Therefore, the court remands this matter to the Commissioner of the Social 14 Security Administration ( Commissioner ) in accordance with the principles and 15 instructions enunciated in this Memorandum Opinion and Order. 16 II. 17 FACTUAL AND PROCEDURAL BACKGROUND 18 J.G., who was thirteen years old on the date of his July 28, 2009 19 administrative hearing, is a high school student. AR at 11, 22. 20 On October 22, 2007, plaintiff filed an application for SSI on behalf of J.G. 21 due to attention deficit hyperactivity disorder ( ADHD ), alleging an onset date of 22 September 1, 2004.1 AR at 8, 58. The Commissioner denied plaintiff s 23 24 25 1 Plaintiff, on behalf of J.G., filed a prior claim for SSI. AR at 22, 101-02. 26 The application was denied on June 1, 2006. AR at 102, 178. The prior 27 application and denial are not included in the Administrative Record. 28 2 1 application initially and upon reconsideration, after which she filed a request for a 2 hearing. AR at 58-68. 3 On July 28, 2009, plaintiff and J.G., represented by counsel, appeared and 4 testified at a hearing before the ALJ. AR at 22-37. On October 27, 2009, the ALJ 5 denied plaintiff s claim for benefits. AR at 8-21. Applying the three-step sequential evaluation process,2 the ALJ found, at 6 7 step one that J.G. did not engage in substantial gainful activity since October 22, 8 2007. AR at 11. 9 10 11 2 An individual under the age of 18 shall be considered disabled . . . if that 12 individual has a medically determinable physical or mental impairment, which 13 results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous 14 period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(I). In determining 15 eligibility for SSI based on a childhood disability, the Commissioner applies a three-step evaluation process. 20 C.F.R. § 416.924(a). 16 17 18 19 20 21 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 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 in severity any impairment that is listed in 20 C.F.R. Part 404, Subpart P. Appendix 1 (the Listings ). 20 C.F.R. § 416.924(d). 22 27 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; and (6) health and well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). 28 3 23 24 25 26 1 At step two, the ALJ found that J.G. suffered from the following severe 2 impairment: ADHD. Id. 3 At step three, the ALJ found that J.G. s impairment did not meet or 4 medically equal one of the Listings. Id. The ALJ also determined that the 5 impairment did not functionally equal any of the Listings, finding that J.G. had 6 marked limitations in acquiring and using information (AR at 15-16), but less than 7 marked or no limitations in the other domains (AR at 16-20).3 Consequently, the 8 ALJ found that J.G. was not disabled from October 22, 2007 through the date of 9 the decision. AR at 20. 10 Plaintiff filed a timely request for review of the ALJ s decision, which was 11 denied by the Appeals Council. AR at 1-3. The ALJ s decision stands as the final 12 decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 19 (as amended). But if the court determines that the ALJ s findings are based on 20 legal error or are not supported by substantial evidence in the record, the court 21 may reject the findings and set aside the decision to deny benefits. Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 23 1144, 1147 (9th Cir. 2001). 24 25 3 A marked limitation interferes seriously with [the child s] ability to 26 independently initiate, sustain, or complete activities. 20 C.F.R. 27 § 416.926a(e)(2). 28 4 1 Substantial evidence is more than a mere scintilla, but less than a 2 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 3 relevant evidence which a reasonable person might accept as adequate to support 4 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 5 F.3d at 459. To determine whether substantial evidence supports the ALJ s 6 finding, the reviewing court must review the administrative record as a whole, 7 weighing both the evidence that supports and the evidence that detracts from the 8 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 9 affirmed simply by isolating a specific quantum of supporting evidence. 10 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 11 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 12 the ALJ s decision, the reviewing court may not substitute its judgment for that 13 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 14 1992)). 15 IV. 16 DISCUSSION 17 Plaintiff contends that the ALJ erred in finding J.G. has less than marked 18 limitations in the second domain: attending and completing tasks. Plaintiff asserts 19 that each of the three issues she raises as grounds for relief (1) whether the ALJ 20 failed to properly consider plaintiff s testimony by failing to give a germane 21 reason for discounting her testimony, (2) whether the ALJ failed to properly 22 consider Exhibits 11F, 12F, and 13F by failing to seek an evaluation of the entire 23 case, including these exhibits, from a medical expert, and (3) whether the ALJ 24 should have considered a closed period of disability contributed to the ALJ s 25 finding that J.G. has less than marked limitations in attending and completing 26 tasks. 27 28 5 1 A. The ALJ Failed to Specify Germane Reasons for Discounting Plaintiff s 2 Testimony 3 Plaintiff argues that the ALJ improperly discounted her testimony. Pet. 4 Mem. at 8-12. Specifically, plaintiff contends that the ALJ failed to give germane 5 reasons for discounting her testimony and Function Report, dated October 22, 6 2007, regarding the functional domain of attending and completing tasks. This 7 court agrees. 8 [L]ay testimony as to a claimant s symptoms or how an impairment affects 9 ability to work is competent evidence and therefore cannot be disregarded without 10 comment. Stout v. Comm r, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 11 quotation marks, ellipses, and citation omitted) (emphasis in original); see Smolen 12 v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also 20 C.F.R. § 416.913(d)(4) 13 (explaining that Commissioner will consider evidence from non-medical 14 sources[,] including spouses, parents and other caregivers, siblings, other 15 relatives, friends, neighbors, and clergy[,] in determining how a child functions 16 compared to similarly aged children who do not have an impairment). The ALJ 17 may only discount the testimony of lay witnesses if he provides specific reasons 18 that are germane to each witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 19 2003); accord Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ( Lay testimony 20 as to a claimant s symptoms is competent evidence that an ALJ must take into 21 account, unless he or she expressly determines to disregard such testimony and 22 gives reasons germane to each witness for doing so. ). 23 In the Function Report, plaintiff indicated that J.G. is unable to keep busy 24 on his own, finish what he starts, work on arts and crafts projects, complete his 25 homework, and complete his chores. AR at 99. Subsequently, at the hearing, 26 plaintiff testified that J.G. will not do one activity for thirty continuous minutes at 27 28 6 1 home, but that she believes he has started finishing his work at school. AR at 31. 2 Plaintiff also testified that J.G. was doing better, his grades were improving, and 3 that his behavior was improving. AR at 31-33. 4 The ALJ, after summarizing plaintiff s testimony, determined that plaintiff 5 was only credible to the extent that she [was] consistent with the findings herein. 6 AR at 12. But the ALJ did not there, or anywhere, specify what his basis was for 7 discounting plaintiff s testimony. Instead, the ALJ proceeded to summarize and 8 discuss the other lay and medical opinions, and his findings based on these 9 opinions. One might infer from this that the ALJ discounted plaintiff s testimony 10 based on inconsistent medical opinions, other lay opinions, and J.G. s academic 11 and behavioral improvements. See Carmickle v. Comm r, 533 F.3d 1155, 1164 12 (9th Cir. 2008) (finding that inconsistency with actual functional abilities is a 13 germane reason to reject lay testimony); Bayliss v. Barnhart, 427 F.3d 1211, 1218 14 (9th Cir. 2005) (inconsistency with medical evidence is a germane reason for 15 discrediting lay testimony). But to draw such an inference requires something of a 16 leap, in that the ALJ nowhere stated that these conflicting opinions and testimony 17 were in fact the bases for his discounting of plaintiff s testimony. The court is not 18 willing to make such a leap. 19 Admittedly, the ALJ came very close here to adequately stating germane 20 reasons for discounting plaintiff s testimony. The Ninth Circuit has upheld an 21 ALJ s findings where the ALJ at least noted arguably germane reasons for 22 dismissing the family members testimony, even if he did not clearly link his 23 determination to those reasons. Lewis, 236 F.3d at 512. But although the ALJ in 24 Lewis did not clearly link each reason he gave to his dismissal of the family 25 members testimony, he did at least generally specify that those were the reasons. 26 27 28 7 1 Specifically, the Ninth Circuit noted that the ALJ expressly disregarded the 2 family members' testimony as follows: 3 I have carefully considered the testimony of the claimant and the 4 family members in which they indicated that the claimant has been 5 constantly groggy and fatigued since 1989. However, the 6 documented medical history and findings and prior recorded 7 statements are contrary to the testimony. 8 Id. at 511. Thus, unlike in this case, in Lewis there was no question that the ALJ 9 discounted the lay testimony based on contrary medical evidence and prior 10 statements. See also Thebo v. Astrue, 436 Fed. Appx. 774, 776 (9th Cir. 2011) 11 (upholding ALJ findings where the ALJ did not clearly link his rejection of the 12 lay testimony to conflicts between the lay testimony and the medical evidence, 13 but where ALJ apparently juxtaposed his rejection of the lay testimony with his 14 germane reasons for rejecting it, as the ALJ noted that both [statements by 15 family members] were considered in arriving at the residual functional capacity 16 and that [c]onsideration [was] given to the medical opinions and lay reporting ). 17 Here, the ALJ failed to even juxtapose plaintiff s testimony with the contrary 18 evidence, and thus the court can only presume what the ALJ s basis was for 19 discounting plaintiff s testimony. 20 Accordingly, the court finds that the ALJ failed to specify germane reasons 21 for discounting plaintiff s testimony. 22 B. The ALJ Failed to Properly Evaluate the Medical Records 23 Plaintiff contends that the ALJ failed to properly consider Exhibits 11F, 24 12F, and 13F, which were J.G. s medical records from November 2006 through 25 July 2009. Pl. Mem. at 12-13. Specifically, plaintiff argues that none of the 26 medical opinions addressed the treatment records. Id. at 12. The court finds that 27 28 8 1 the ALJ considered the treatment records, but failed to make a reasonable effort to 2 obtain a case evaluation of the entire record. 3 Exhibits 11F and 12F are treatment notes from the Riverside County 4 Department of Mental Health. AR at 244-324. Exhibit 13F consists of treatment 5 notes for J.G. s physical illnesses. See AR at 326-330. Plaintiff submitted 6 Exhibits 12F and 13F to the ALJ at the hearing. AR at 25. These records were 7 unavailable to the State agency physicians at the time of their evaluations. See AR 8 at 142-47, 178-80, 220-28, 237-43. Because Exhibit 13F only concerns J.G. s 9 physical illnesses, it is irrelevant to this discussion. 10 Section 1382(c)(a)(3)(I) of Title 42 of the United States Code states, in 11 relevant part: 12 In making any determination . . . with respect to the disability of an 13 individual who has not attained the age of 18 years . . . , the 14 Commissioner of Social Security shall make reasonable efforts to 15 ensure that a qualified pediatrician or other individual who 16 specializes in a field of medicine appropriate to the disability of the 17 individual . . . evaluates the case of such individual. 18 In Howard v. Barnhart, the Ninth Circuit interpreted this statute as requiring the 19 ALJ to make a reasonable effort to obtain a case evaluation, based on the record 20 in its entirety, from a pediatrician or other appropriate specialist, rather than 21 simply constructing his own case evaluation from the evidence in the record. 341 22 F.3d 1006, 1014 (9th Cir. 2003). The Ninth Circuit acknowledged that the record 23 contained reports from various experts, offering opinions as to their particular 24 speciality, but none that evaluated the case as a whole. Id. 25 In response, the Social Security Administration issued Acquiescence Ruling 26 04-01(9) ( AR 04-01(9) ). 2004 WL 875081. Pursuant to AR 04-01(9), the ALJ 27 28 9 1 may satisfy the requirements in 42 U.S.C. § 1382c(a)(3)(I) by rely[ing] on case 2 evaluation made by a State agency medical or psychological consultant that is 3 already in the record. The record must include evidence of the qualifications of 4 the State agency physician. Id. 5 In reaching his disability determination, the ALJ thoroughly discussed the 6 lay opinions, treatment notes, and medical opinions.4 AR at 12-14. The ALJ 7 noted that the opinions and treatment notes were consistent. Two teachers noted 8 that J.G. had problems with focus and concentration, but one of them opined that 9 J.G. had little or no limitations in six out of the thirteen areas considered in the 10 attending and completing tasks domain. AR at 12-13, 151, 161. A third teacher 11 opined that J.G. did not have serious problems with attending and completing 12 tasks. AR at 13, 204. A consultative examiner, Dr. Robin Rhodes Campbell, 13 ruled out ADHD and opined that J.G. s attention and concentration abilities were 14 moderately impaired. AR at 13, 138, 140. The ALJ further noted that one State 15 agency psychiatrist diagnosed J.G. with a learning disability, not ADHD (AR at 16 14, 142, 144), a second State agency psychiatrist opined that J.G. s ability to 17 attend and complete tasks was less than marked (AR at 14, 180), a third State 18 agency psychiatrist opined that J.G. had only hard marked difficulty in acquiring 19 and using information (AR at 14, 224), and a fourth State agency psychiatrist did 20 not believe that J.G. had any marked impairments (AR at 14, 239). Further, the 21 ALJ reviewed the treatment notes in Exhibits 11F and 12F, noting that the records 22 indicate that J.G. improved significantly from November 2007 through January 23 24 4 Some of the medical opinions appear to be from plaintiff s prior application for SSI. AR at 136-47. One opinion, dated February 14, 2007, was issued after 26 the denial of the prior application but before plaintiff filed the instant application. 27 AR at 178-80. 25 28 10 1 2008. AR at 13. The notes indicated that J.G. had problems with concentration 2 but that after taking medication, his grades improved in school. AR at 13, 304. 3 As in Howard, there is substantial evidence to support the ALJ s decision. 4 But the ALJ erred when he failed to comply with 42 U.S.C. § 1382c(a)(3)(I). The 5 State agency physicians opinions did not constitute an evaluation of J.G. s entire 6 case. At the time the State agency physicians issued their opinions (AR at 142-47, 7 178-80, 220-28, 237-43), the record did not contain the relevant treatment notes 8 (AR at 244-324). See Willmett v. Astrue, No. 10-01201, 2011 WL 3816284, at *4 9 (E.D. Cal. Aug. 25, 2011) (State agency physician, who completed his report over 10 eighteen months prior to the ALJ decision, did not review a subsequently issued 11 opinion); Robinson v. Astrue, No. 08-2296, 2010 WL 3733993, at *4 (E.D. Cal. 12 Sept. 21, 2010) (State agency physician s opinion did not constitute an evaluation 13 of the entire record because it did not address the evidence submitted after it was 14 issued). The hearing was in July 2009 and the ALJ did not render his decision 15 until December 2009. There was ample time for the ALJ to seek an evaluation of 16 the entire record, but the ALJ failed to do so. 17 Accordingly, the ALJ failed to properly evaluate the medical records. In 18 light of this finding and the finding above that the ALJ failed to properly consider 19 plaintiff s testimony, both of which (as discussed below) require remand, it is not 20 necessary to reach the question of whether the ALJ should have considered a 21 closed period of disability on the record then before him, particularly as that 22 record will be augmented on remand. 23 V. 24 REMAND IS APPROPRIATE 25 The decision whether to remand for further proceedings or reverse and 26 award benefits is within the discretion of the district court. McAllister v. Sullivan, 27 28 11 1 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by 2 further proceedings, or where the record has been fully developed, it is appropriate 3 to exercise this discretion to direct an immediate award of benefits. See Benecke 4 v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 5 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings 6 turns upon their likely utility). But where there are outstanding issues that must be 7 resolved before a determination can be made, and it is not clear from the record 8 that the ALJ would be required to find a plaintiff disabled if all the evidence were 9 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 10 Harman, 211 F.3d at 1179-80. 11 Here, as set out above, remand is required because the ALJ erred both in 12 failing to state germane reasons for discounting plaintiff s testimony, and in 13 failing to obtain a case evaluation of the entire record. On remand, the ALJ shall 14 again consider plaintiff s testimony and, to the extent the ALJ again determines to 15 discount plaintiff s testimony, the ALJ shall specify reasons germane to plaintiff 16 for doing so. In addition, the ALJ shall obtain a case evaluation of J.G. s entire 17 record either by a State agency psychiatrist or medical expert. The ALJ shall 18 thereafter determine, in light of the newly-obtained evaluation and all other 19 evidence in the record, whether J.G. s impairment functionally equals a Listing, 20 and whether (if the ALJ determines J.G. is not disabled on an ongoing basis) J.G. 21 was disabled during a closed period. 22 // 23 // 24 // 25 // 26 // 27 28 12 1 VI. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 REVERSING the decision of the Commissioner denying benefits, and 5 REMANDING the matter to the Commissioner for further administrative action 6 consistent with this decision. 7 8 Dated: April 3, 2012 9 10 SHERI PYM UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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.