S.C.L.C. et al v. Michael J Astrue, No. 5:2012cv00409 - Document 16 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jean P Rosenbluth, REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS: (See document for details.) Accordingly, IT IS HEREBY ORDERED that (1) the decision of the Commissioner is REVERSED; (2) Plaintiff's request for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. (rla)
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O 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 S.C.L.C., by and through his guardian ad litem, SANDRA GREENE, Plaintiff, 11 vs. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-0409-JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS 15 16 I. PROCEEDINGS 17 Plaintiff seeks review of the Commissioner s final decision 18 denying his application for Supplemental Security Income ( SSI ). 19 The parties consented to the jurisdiction of the undersigned U.S. 20 Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is 21 before the Court on the parties Joint Stipulation, filed 22 December 17, 2012, which the Court has taken under submission 23 without oral argument. 24 Commissioner s decision is reversed and this action is remanded 25 26 27 28 For the reasons stated below, the for further proceedings consistent with this memorandum opinion. II. BACKGROUND Plaintiff was born on June 24, 1996. 1 (Administrative Record 1 ( AR ) 72.) At the time of the hearing in this matter, he was a 2 13-year-old eighth-grader. (AR 40.) On June 11, 2008, through 3 his mother, Plaintiff Sandra Greene, he filed an application for 4 SSI, alleging a disability onset date of June 1, 2008. 5 The application was denied on September 15, 2008. (AR 154.) (AR 74-77.) Plaintiff then requested reconsideration (AR 79), which was 6 7 denied on March 11, 2009 (AR 80-83). Plaintiff next requested a 8 hearing before an Administrative Law Judge ( ALJ ). 9 hearing was held on May 11, 2010, at which Plaintiff, who was 10 11 12 13 represented by counsel, and his mother testified. (AR 88.) A (AR 37-71.) Plaintiff did not request that a medical expert testify, and none did. (See generally id.) evidence at the hearing. Plaintiff submitted new documentary (AR 36.) On June 25, 2010, the ALJ issued a written decision finding that Plaintiff was not 14 15 16 disabled. (AR 17-33.) Appeals Council. Plaintiff then sought review by the (AR 13.) On January 17, 2012, the Appeals Council denied Plaintiff s request for review after considering 17 his newly submitted evidence. 18 III. STANDARD OF REVIEW 19 (AR 1-5.) This action followed. Pursuant to 42 U.S.C. § 405(g), a district court may review 20 the Commissioner s decision to deny benefits. The ALJ s findings 21 and decision should be upheld if they are free of legal error and 22 are supported by substantial evidence based on the record as a 23 whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. 24 Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 25 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 26 evidence as a reasonable person might accept as adequate to 27 support a conclusion. 28 Richardson, 402 U.S. at 401; Lingenfelter 2 1 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 3 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 4 882 (9th Cir. 2006)). To determine whether substantial evidence 5 supports a finding, the reviewing court must review the 6 administrative record as a whole, weighing both the evidence that 7 supports and the evidence that detracts from the Commissioner s 8 conclusion. 9 1996). 10 11 12 13 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming or reversing, the reviewing court may not substitute its judgment for that of the Commissioner. IV. Id. at 720-21. THE EVALUATION OF DISABILITY An individual under the age of 18 shall be considered disabled . . . if that individual has a medically determinable 14 15 16 physical or mental impairment, which 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 17 continuous period of not less than 12 months. 18 § 1382c(a)(3)(C)(i). 42 U.S.C. 19 A. 20 In determining eligibility for SSI based on a childhood The Three-Step Evaluation Process 21 disability, the Commissioner follows a three-step evaluation 22 process. 20 C.F.R. § 416.924(a). 23 At step one, the Commissioner considers whether the child 24 has engaged in substantial gainful activity. 25 so, the claimant is not disabled. Id. § 416.924(b). If If not, step two requires 26 the Commissioner to consider whether any impairment or 27 combination of impairments is severe. 28 3 § 416.924(c). If not, the 1 claimant is not disabled. Id. If so, then at step three the 2 Commissioner must determine whether the impairment meets, 3 medically equals, or functionally equals in severity any 4 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 5 (the Listings ). 6 disabled. 7 § 416.924(d). Only if so is the claimant Id. An impairment functionally equals a Listing if the child 8 has marked limitations in at least two of six functional domains 9 or an extreme limitation in at least one domain.1 10 11 12 13 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 oneself; and (6) health and physical well-being. 14 15 16 § 416.926a(a). B. § 416.926a(b)(1)(i)-(vi). The ALJ s Application of the Three-Step Process At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the application date. (AR 17 23.) At step two, the ALJ found that Plaintiff had the severe 18 impairments of Tourette Syndrome and attention deficit 19 hyperactivity disorder. (Id.) At step three, the ALJ found that 20 Plaintiff did not have an impairment or combination of 21 impairments that met or medically or functionally equaled one of 22 the Listings. (Id.) Specifically, the ALJ found that Plaintiff 23 24 25 26 27 28 1 A marked limitation interferes seriously with [the child s] ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2). An extreme limitation interferes very seriously with those things. § 416.926a(e)(3). 4 1 had less than marked limitation in each of the six functional 2 domains. (AR 26-32.) 3 V. DISCUSSION 4 Plaintiff raises only one issue: the Commissioner did not 5 comply with the requirements of Howard ex rel. Wolff v. Barnhart, 6 341 F.3d 1006, 1014 (9th Cir. 2003), or the Social Security 7 ruling designed to implement its holding, Acquiescence Ruling 048 01(9), 69 Fed. Reg. 22578 (Apr. 26, 2004).2 9 ALJ presiding over a minor s claim to make a reasonable effort 10 11 12 13 to obtain a case evaluation, based on the record in its entirety, from a pediatrician or other appropriate specialist, rather than simply constructing his own case evaluation from the evidence in the record. 341 F.3d at 1014 (interpreting 42 U.S.C. § 1382c(a)(3)(I)). 14 15 16 Howard requires an Ruling 04-01(9) states that under Howard, an ALJ may rely on case evaluation made by a State agency medical or psychological consultant that is already in the record, as long as the record demonstrates the qualifications of the State 17 agency physician, or on the testimony of a medical expert. 18 Fed. Reg. at 22579. 19 69 As thorough as the ALJ s decision was and although it 20 appears to have been supported by substantial evidence, remand is 21 necessary because the ALJ committed legal error by failing to 22 23 24 25 26 2 A Social Security acquiescence ruling explains how the Social Security Administration will apply a holding in a decision of a U.S. Court of Appeals that conflicts with the agency s own interpretation of a provision of the Social Security Act or regulations after the Commissioner has decided not to seek further review of the decision or has been unsuccessful doing so. See SSAR 04-01(9), 69 Fed. Reg. at 22579. 27 28 5 1 secure a complete case evaluation from an appropriate specialist 2 based on the record in its entirety. See Vega ex rel. J.G. v. 3 Astrue, No. ED CV 11 769 SP, 2012 WL 1144407, at *5 (C.D. Cal. 4 Apr. 2, 2012) (remanding for compliance with Howard even though 5 substantial evidence supported ALJ s decision). 6 Defendant contends that the ALJ satisfied Howard and the 7 acquiescence ruling by crediting the findings of psychologist 8 Kathy A. Vandenburgh and state agency psychiatrists N. Haroun and 9 S. Khan. 10 11 12 13 (J. Stip. at 6.) Even assuming that these doctors were qualified to make their assessments, as the record seems to reflect, and that the ALJ relied on their reports to satisfy Howard, which the record does not reflect, they necessarily failed to evaluate Plaintiff based on the record in its entirety because they wrote their reports in early 2009 and did 14 15 16 not take into consideration the evidence Plaintiff presented at the time of the hearing, in May 2009, or to the Appeals Council thereafter. See Willmett ex rel. A.P. v. Astrue, No. 2:10-cv- 17 01201-KJN, 2011 WL 3816284, at *4 (E.D. Cal. Aug. 25, 2011) 18 (noting that ALJ never mentioned Howard or acquiescence ruling in 19 decision and remanding in part because state agency evaluators 20 necessarily never saw some record evidence). Some of this 21 evidence was clearly not material or would not have changed any 22 of the medical sources opinions, but the Court cannot say that 23 about all of it. For instance, on February 26, 2009, the same 24 day Dr. Vandenburgh prepared her report, Plaintiff s treating 25 doctor, Dr. Chao Hsu, examined Plaintiff and found that 26 patient s condition is worsening more movements poor 27 concentration. 28 (AR 328.) On April 23, 2009, Plaintiff s dosage 6 1 of Concerta was increased because ADHD . . . no longer appears 2 to be improved by his current medication. (AR 309.) 3 2010, Plaintiff began taking a new medication, Tenex. In May (AR 333.) 4 This information is material to Plaintiff s case and under Howard 5 should have been reviewed by a state agency psychiatrist or a 3 6 medical expert as part of the record in its entirety. 7 Defendant contends that because at the time Plaintiff s 8 medications were changed the treatment notes also indicated no 9 new concerns, his symptoms appeared well controlled and the 10 11 12 13 information was not material. 15 16 That is not necessarily true, however, because the notes could simply have meant that the problems Plaintiff had always had continued and were no longer controlled by the medications Plaintiff was taking. 14 (J. Stip. at 9.) See Godwin ex rel. V.E. v. Comm r of Soc. Sec., CV 09-482-PHX-MHM, 2010 WL 1337745, at *4 (D. Ariz. Mar. 31, 2010) (Murguia, J.) (remanding for specialist to review case in its entirety in part because plaintiff s medications had been 17 changed several times since state agency evaluators reviewed 18 record). Defendant also argues that the ALJ expressly rejected 19 Dr. Hsu s earlier findings because he found him not credible and 20 therefore would have rejected the February 2009 findings as well 21 (J. Stip. at 9), but that is beside the point; Howard requires 22 some kind of medical expert to evaluate the record in its 23 24 3 27 Some of this evidence was submitted to the Commissioner for the first time before the Appeals Council, and yet nothing in the record shows that the Appeals Council made a reasonable effort to seek a case evaluation based on the entire record, as ruling 041(9) expressly requires it to do. See Willmett, 2011 WL 3816284, at *6. 28 7 25 26 1 entirety, and the three experts Defendant relies on apparently 2 never saw Dr. Hsu s February 2009 evaluation or the records 3 indicating changes in Plaintiff s medications. See Godwin, 2010 4 WL 1337745, at *4 ( while it is true that the ALJ did not give 5 much weight to the medical examinations conducted by [certain 6 doctors], that medical evidence [from them] was nonetheless in 7 the record ); Robinson v. Astrue, No. CIV-S-08-2296-DAD, 2010 WL 8 3733993, at *4 (E.D. Cal. Sept. 21, 2010) (remanding because to 9 extent ALJ relied on state agency psychiatrists evaluations, 10 11 12 13 they were prepared two years before hearing and doctors did not consider evidence developed in those two years). this matter must be remanded so that Howard may be complied with.4 VI. 14 15 16 Accordingly, CONCLUSION When error exists in an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. INS v. 17 Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272 18 (2002) (citations and quotation marks omitted); Moisa v. 19 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Remand, not an 20 21 4 The Court notes that in Howard, unlike here, the claimant had 22 requested having a medical expert testify at the hearing and the 23 ALJ had declined to do so. 341 F.3d at 1010-11 & n.2. Still, it 27 was the ALJ s obligation to ensure that § 1382c(a)(3) was followed. See Howard, 341 F.3d at 1014 (interpreting statute to require ALJ to make a reasonable effort to obtain a case evaluation, from a pediatrician or other appropriate specialist, rather than simply constructing his own case evaluation from the evidence in the record, and noting distinction between having expert evaluate claimant based on expert s particular specialty, and having an expert evaluate a claimant s case in its entirety ). 28 8 24 25 26 1 award of benefits, is the proper course in this case. See 2 Strauss v. Comm r of Soc. Sec. Admin., 635 F.3d 1135, 1136 (9th 3 Cir. 2011) (remand for automatic payment of benefits 4 inappropriate unless evidence unequivocally establishes 5 disability). On remand, the ALJ shall obtain a case evaluation 6 of Plaintiff s entire record by either a state agency 7 psychiatrist or a medical expert. The ALJ must thereafter 8 determine, in light of the newly obtained evaluation and all the 9 other evidence in the record, whether Plaintiff s impairments 10 11 12 medically or functionally equal a Listing. The ALJ must explain how he considered the state agency evaluator s or medical expert s report. See Willmett, 2011 WL 3816284, at *5. ORDER 13 Accordingly, IT IS HEREBY ORDERED that (1) the decision of 14 15 16 17 the Commissioner is REVERSED; (2) Plaintiff s request for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve 18 copies of this Order and the Judgment herein on all parties or 19 their counsel. 20 21 DATED: January 14, 2013 22 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 23 24 25 26 27 28 9
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