Joy Jackson v. Michael J Astrue, No. 2:2012cv09583 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Victor B. Kenton. This matter will be remanded for further hearing consistent with this Memorandum Opinion. 2 [SEE ORDER FOR FURTHER DETAILS] (gr)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 JOY JACKSON, on behalf of her minor son, M.J., 12 Plaintiff, 13 v. 14 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-09583-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred by not 1 finding Plaintiff disabled pursuant to Social Security 2 Listing 111.09 considering the substantial evidence that 3 supported such a finding; 4 2. Whether the ALJ erred by not calling upon a medical expert 5 6 to review Plaintiff s file in its entirety; and 3. Whether the ALJ erred by not affording controlling weight to 7 8 the opinions of Plaintiff s treating providers. (JS at 2.) 9 10 This Memorandum Opinion will constitute the Court s findings of 11 fact and conclusions of law. After reviewing the matter, the Court 12 concludes 13 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 14 15 I 16 THE ALJ DID NOT APPROPRIATELY EVALUATE FUNCTIONAL EQUIVALENCE 17 FOR CHILDREN AS SET FORTH IN 20 C.F.R. § 416.926a 18 19 Plaintiff filed this suit on behalf of her minor child, M.J., who was born February 18, 2009. (AR 388.) 20 After reviewing the record, the Court concludes that the ALJ 21 failed to properly evaluate functional equivalence pursuant to C.F.R. 22 § 416.926a. Before explaining this conclusion, the Court will briefly 23 address the relevant law as set forth in that regulation. 24 In Plaintiff s case, the ALJ determined that he has severe 25 impairments including a cranial defect, status post-surgery and 26 developmental delays. (AR 15.) 27 Commissioner must determine whether such severe impairments result in 28 limitations that functionally equal a Listing. Functional equivalence Pursuant to the regulations, the 2 1 is defined in § 416.926a(a) as resulting in marked limitations in 2 two domains of functioning, or an extreme limitation in one domain. 3 The domains of functioning are identified as follows: acquiring and 4 using information; attending and completing tasks; interacting and 5 relating with others; moving about and manipulating objects; caring 6 for yourself; and health and physical well being (§ 416.926a(b)(1)(i- 7 vi)). 8 In determining whether an impairment functionally equals the 9 Listings, the regulation instructs that, We will not compare your 10 functioning 11 416.926a(d).) 12 There to are the requirements various way to of any define specific marked 13 limitations set forth in § 416.926a(e). 14 listing. and (§ extreme One method of determining marked limitations is identified as follows: 15 If you have not attained age 3, we will generally find 16 that you have a marked limitation if you are functioning 17 at a level that is more than one-half but not more than two- 18 thirds of your chronological age when there are no standard 19 scores from standardized tests in your case record. 20 (§ 416.926(e)(2)(ii).) 21 22 In this case, M.J. received services from and was tested by 23 Regional Center. This testing was administered by Jenny Marshall, 24 M.A., Developmental Specialist, on December 29, 2010. (AR 339-343.) 25 At this time, M.J. was 22 months old. 26 Regional Center assessed that he had developmental delays and was at 27 the 15.50 month level (AR 340); his expressive and receptive language 28 developments were determined to be at the 13.75 month level (AR 341); 3 As a result of testing, 1 his fine motor skills were at the 14.50 month level (AR 342); and his 2 social-emotional development was determined to be at the 18.00 month 3 level. (Id.) 4 which occurred on April 19, 2011 (AR 30), they were not available at 5 that time to either the ALJ or to the Medical Expert ( ME ), Dr. 6 Alperin. 7 pertinent part that, Obviously, we re going to need to get the 8 records from the regional center. 9 CE ... So I have to find out whether any psychological testing, at any Although these testing results predated the hearing, The ALJ kept the record open. kind of testing In doing so, he stated in I may send them out for a pediatric 10 least that would develop any - show any 11 developmental abnormality but, but, in the meantime, get me the 12 records, ... (AR 44.) 13 The ALJ further indicated that after reviewing the records of the 14 Regional Center, he would determine whether to have a subsequent 15 hearing (which did not occur), and if so, whether to have testimony 16 from a ME, ostensibly concerning the import and effect of the Regional 17 Center records. (AR 45.) 18 In his Decision, in a footnote, the ALJ referenced the later 19 received Regional Center records, but did not address them in their 20 entirety, noting only that testing indicated developmental levels 21 ranging from 13.50 to 22.50 months, and assessing the results as 22 essentially ... normal. (AR 17, fn 2.) In determining the case, the 23 ALJ primarily relied upon a psychological consultative examination 24 ( CE ) dated August 24, 2011 by Dr. Colonna (AR 17, 374-379), but it 25 is apparent from Dr. Colonna s report that she had not reviewed any of 26 the records or testing results from Regional Center. (See AR at 375.) 27 Another relevant report by a clinical psychologist, Dr. Victor 28 Sanchez, is contained in the record at AR 388-392. 4 At the time, M.J. 1 was 31 months old. Dr. Sanchez evaluated M.J. as having an IQ of 58, 2 and under developmental profile III, found communication to be at 16 3 months; social/emotional at 24 months; physical at 26-28 months; 4 cognitive at 18 months; and adaptive at 18 months. (AR 392.) 5 report was not referenced in the ALJ s Decision, although it predated 6 the Decision, albeit by just a short time. 7 relevant to the current evaluation.1 This Nevertheless, it is 8 The Court also notes the statements of M.J. s mother to Dr. 9 Sanchez, indicating her estimate that M.J. has a total vocabulary of 10 no more than 10 words and only occasionally forms two-word phrases. 11 (AR 389.) 12 by the use of occasional single words - some of which were spoken 13 indistinctly. (AR 390.) 14 these matters at the April 19, 2011 hearing before the ALJ is 15 consistent with her reports to Dr. Sanchez, and Dr. Sanchez s own 16 observations. Dr. Sanchez observed that M.J. s speech was characterized The testimony of M.J. s mother regarding 17 The Commissioner depreciates, almost to the point of irrelevance, 18 the report of Regional Center testing by staff members who, the 19 Commissioner asserts, were not acceptable medical sources. (JS at 20 6.) 21 regulations, particularly 20 C.F.R. § 404.1513(d). 22 record is far from clear that the reports from staff members of 23 Regional Center were not prepared by qualified and acceptable sources 24 pursuant to the Regulation. 25 determine the qualification of these sources. 26 approach is akin to throwing out the baby with the bath water. But the depreciation of these sources conflicts with the In any event, the The record should be developed to The Commissioner s If, 27 1 28 On remand, Dr. Sanchez s evaluation of Plaintiff s IQ (58) should be addressed. (See Listing 12.05 B, C, D.) 5 1 indeed, the Regional Center testing is valid, then M.J. would appear 2 to have the requisite amount of marked limitations in functional 3 areas to satisfy the requirements for Listing level equivalence. 4 The issues identified as Nos. 2 and 3 are, effectively, subsumed 5 in the Court s discussion of the first issue. 6 who testified at the administrative hearing did not have all of the 7 relevant records to review. 8 Dr. Colonna, did not have these records, thus rendering the ALJ s 9 reliance upon Dr. Colonna s report unreliable. 10 11 12 In this case, the ME In addition, as noted, the psychologist, For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 13 14 15 DATED: August 27, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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