Quiana Bryant v. Michael J. Astrue, No. 5:2009cv01537 - Document 23 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendantfor further proceedings consistent with this Memorandum Opinion. THIS MEMORANDUM OPINION AND ORDER IS NOT INTENDED FOR PUBLICATION, NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. **See Order for details.** (ch)

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Quiana Bryant v. Michael J. Astrue Doc. 23 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 18 QUIANA BRYANT, as Guardian ad Litem ) for M.V.W., a minor, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) COMMISSIONER OF SOCIAL ) SECURITY ADMINISTRATION, ) ) Defendant. ) ) No. ED CV 09-1537-PLA MEMORANDUM OPINION AND ORDER 19 20 I. 21 PROCEEDINGS 22 Quiana Bryant ( plaintiff ), on behalf of her minor son M.V.W.,1 filed this action on August 23 19, 2009, seeking review of the Commissioner s denial of M.V.W. s application for Supplemental 24 Security Income payments. The parties filed Consents to proceed before the undersigned 25 Magistrate Judge on October 7, 2009, and October 8, 2009. Pursuant to the Court s Order, the 26 parties filed a Joint Stipulation on April 28, 2010, that addresses their positions concerning the 27 28 1 At the time this action was filed, Quiana Bryant was appointed Guardian ad Litem for her minor son, who will be referred to herein as M.V.W. Dockets.Justia.com 1 disputed issues in the case. The Court has taken the Joint Stipulation under submission without 2 oral argument. 3 4 II. 5 BACKGROUND 6 On August 26, 2005, plaintiff filed an application seeking Supplemental Security Income 7 payments for her minor son, M.V.W., alleging that he has been disabled since August 19, 2005, 8 due to juvenile diabetes and related complications including urination problems, hunger, sweating, 9 headaches, shaking, anxiety, and nosebleeds. [Administrative Record ( AR ) at 140-47.] After 10 the application was denied initially and upon reconsideration, plaintiff requested a hearing before 11 an Administrative Law Judge ( ALJ ). [AR at 73-82, 86.] A hearing was held on November 15, 12 2007, at which plaintiff and M.V.W. appeared with counsel and testified. [AR at 22-70.] A medical 13 expert also testified. [AR at 44-47, 49-56, 58-69.] On February 14, 2008, the ALJ determined that 14 M.V.W. was not disabled. [AR at 9-21.] When the Appeals Council denied plaintiff s request for 15 review of the hearing decision on April 28, 2009, the ALJ s decision became the final decision of 16 the Commissioner. [AR at 1-3.] This action followed. 17 18 III. 19 STANDARD OF REVIEW 20 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 21 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 22 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 23 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 24 In this context, the term substantial evidence means more than a mere scintilla but less 25 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 26 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 27 1257. When determining whether substantial evidence exists to support the Commissioner s 28 decision, the Court examines the administrative record as a whole, considering adverse as well 2 1 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 2 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 3 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 4 53 F.3d 1035, 1040-41 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 5 6 IV. 7 EVALUATING DISABILITY IN A CHILD 8 The evaluation of disability for children differs from that for adults. For an individual under 9 eighteen years of age to be disabled for the purpose of receiving benefits, he must suffer from a 10 medically determinable physical or mental impairment, which results in marked and severe 11 functional limitations, and which can be expected to result in death or which has lasted or can be 12 expected to last for a continuous period of not less than [twelve] months. 13 1382c(a)(3)(C)(i). An impairment meets this requirement if it meets or equals in severity any 14 impairment that is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the Listings ). 20 C.F.R. 15 § 416.924(d). 42 U.S.C. § 16 17 A. THE THREE-STEP SEQUENTIAL EVALUATION PROCESS 18 The regulations promulgated by the Social Security Administration establish a three-step 19 sequential evaluation process for child disability cases. See 20 C.F.R. § 416.924. At step one, 20 the relevant inquiry is whether the child is engaged in substantial gainful activity. If so, there is no 21 disability, and the claim is denied. 20 C.F.R. § 416.924(b). If the child is not engaged in 22 substantial gainful activity, the fact finder then determines whether the child has a medically 23 determinable impairment or combination of impairments that is severe. If the impairment is a 24 slight abnormality or a combination of slight abnormalities that causes no more than minimal 25 functional limitations, the Commissioner will find that the impairment is not severe and will deny 26 the child s claim. 20 C.F.R. § 416.924(c). If the claimant has a severe impairment, the third and 27 final step assesses whether the impairment meets or medically or functionally equals in severity 28 an impairment in the Listings. If the impairment meets or equals a listed impairment, the child will 3 1 be found disabled, assuming that the twelve-month duration requirement is also met. 20 C.F.R. 2 § 416.924(d). 3 A child s impairment is medically equivalent to a listed impairment ... if it is at least equal 4 in severity and duration to the criteria of any listed impairment. 20 C.F.R. § 416.926(a). To 5 establish medical equivalence, a claimant must establish symptoms, signs and laboratory findings 6 at least equal in severity and duration to the characteristics of a relevant listed impairment. 7 Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (quoting 20 C.F.R. § 404.1526). 8 To determine whether a child s severe impairment functionally equals a listed impairment, 9 the Commissioner assesses all of the functional limitations caused by the child s impairment in six 10 domains : (1) acquiring and using information; (2) attending and completing tasks; (3) interacting 11 and relating with others; (4) moving about and manipulating objects; (5) caring for self; and (6) 12 health and physical well-being. 20 C.F.R. § 416.926a(a), (b). To functionally equal a listed 13 impairment, a child s impairment must result in marked limitations in two domains or an extreme 14 limitation in one domain. 20 C.F.R. § 416.926a(a). A marked limitation is one that interferes 15 seriously with [the child s] ability to independently initiate, sustain, or complete activities. 20 16 C.F.R. § 416.926a(e)(2). It is more than moderate but less than extreme. Id. An extreme 17 limitation interferes very seriously with [the child s] ability to independently initiate, sustain, or 18 complete activities. 20 C.F.R. § 416.926a(e)(3). It is the rating given to the worst limitations. 19 Id. 20 21 B. THE ALJ S APPLICATION OF THE THREE-STEP PROCESS 22 In this case, at step one, the ALJ found that M.V.W. has not engaged in substantial gainful 23 activity at any relevant time. [AR at 12.] At step two, the ALJ concluded that M.V.W. has the 24 severe impairment of diabetes mellitus, insulin dependent. 25 determined that M.V.W. s impairment does not meet or equal any impairment in the Listings. [AR 26 at 12, 20.] Specifically, in assessing M.V.W. s functional limitations in each of the six domains 27 described above, the ALJ stated that M.V.W. has the following: no limitation in acquiring and using 28 information; no limitation in attending and completing tasks; less than marked limitation in 4 [Id.] At step three, the ALJ 1 interacting and relating with others; no limitation in moving about and manipulating objects; no 2 limitation in caring for himself; and less than marked limitation in health and physical well-being. 3 [AR at 15-20.] Therefore, the ALJ concluded that M.V.W. is not disabled. [AR at 9, 20-21.] 4 5 V. 6 THE ALJ S DECISION 7 Plaintiff contends that the ALJ erred by failing to properly consider: (1) the totality of the 8 relevant medical evidence, and (2) the testimony and subjective statements of plaintiff and the 9 subjective statements of Mr. Greg Shahin, M.V.W. s first grade teacher. [Joint Stipulation ( JS ) 10 at 3-6, 10-14.] As set forth below, the Court agrees with plaintiff, in part, and remands the matter 11 for further proceedings. 12 13 THE ALJ S CREDIBILITY DETERMINATION 14 Plaintiff contends that the ALJ failed to properly consider her testimony and subjective 15 statements in the forms she completed regarding M.V.W. s impairments and resulting limitations. 16 [JS at 10-12, citing AR at 29-49, 56-59, 141, 144, 146, 148-56, 159, 162, 166, 168-69.] Plaintiff 17 further contends that the ALJ failed to properly consider the subjective statements of M.V.W. s first 18 grade teacher, Mr. Shahin, in the questionnaire he completed regarding M.V.W. s functioning. [JS 19 at 13-14.] As set forth below, the Court finds that the ALJ failed to provide any specific reasons 20 germane to plaintiff for discrediting her testimony and subjective statements. Therefore, remand 21 is warranted for the ALJ to properly assess plaintiff s credibility. 22 1. Plaintiff s Testimony and Subjective Statements 23 At the hearing, plaintiff testified that M.V.W. missed school a total of 15 days during the 24 2006-2007 school year due to his highly elevated blood sugar levels. [AR at 29, 34.] Plaintiff 25 stated that as a result of M.V.W. s blood sugar elevation, he sometimes experienced vision 26 problems and consequently ran into objects. [AR at 32-34.] Plaintiff noted that at other times, 27 M.V.W. could not attend school because when he would go to school, he had to use the bathroom 28 approximately every ten to fifteen minutes. [AR at 35.] Plaintiff said that if M.V.W. was not 5 1 complaining about his vision, he was complaining about really bad headaches in which he would 2 be holding his head and standing [in] the same spot ... not moving or anything. [Id.] Plaintiff also 3 stated that M.V.W. repeated the first grade because of his diabetic condition and that his 4 headaches were more frequent at the time of the hearing than in August 2005. [AR at 35-36.] 5 Plaintiff also noted that M.V.W. must sometimes miss school to attend his appointments scheduled 6 once every three months at a diabetes clinic. [AR at 38-39.] Plaintiff confirmed that M.V.W. was 7 hospitalized overnight three times since August 2005, at least one of those times for diabetic 8 ketoacidosis. [AR at 39-40, 42-43.] From March to November 2006, M.V.W. experienced 9 episodes of low blood sugar approximately ten times. [AR at 47-49.] Plaintiff also stated that 10 M.V.W. takes insulin four or more times each day [AR at 44], and currently has ketones in his 11 urine, a condition that plaintiff said occurs when a diabetic s blood sugar level is high. [AR at 56.] 12 Plaintiff noted that M.V.W. experiences stomach pains related to having ketones. [Id.] 13 In addition to her testimony, plaintiff completed several written reports regarding M.V.W. s 14 condition. In the initial Disability Report for M.V.W. [AR at 140-47], plaintiff stated that M.V.W. has 15 a disabling form of juvenile diabetes and complications that cause pain and other symptoms. [AR 16 at 141.] Plaintiff noted that M.V.W. takes insulin three or four times a day or as needed for his 17 condition; has a hard time making it to the restroom; gets nosebleeds; has a special diet; and 18 experiences hunger, sweating, shaking, anxiety, and headaches. [AR at 146.] In a Function 19 Report for M.V.W. dated September 1, 2005 [AR at 148-57], plaintiff stated that M.V.W. s ability 20 to communicate is limited in some areas [AR at 151, 154], he needs help with many things after 21 being sick [AR at 155], he sometimes will not complete his homework [AR at 156], and he has a 22 hard time with homework because of illness and other headache[s]. [Id.] In another Disability 23 Report [AR at 158-64], plaintiff stated that since last completing a disability report, M.V.W. had no 24 changes in his condition or any new limitations, illnesses, or injuries. [AR at 159.] Plaintiff noted 25 in the report that M.V.W. s condition sometimes causes vision problems and feelings of being sick 26 to the stomach. [AR at 162.] In yet another Disability Report [AR at 165-70], plaintiff stated that 27 beginning on approximately March 1, 2006, M.V.W. started to complain about his eyes and 28 see[s] specks and red dots and that he began to use the restroom while he is [a]sleep with no 6 1 control over urine or know[ledge of] when it is time. [AR at 166.] Plaintiff also noted that 2 M.V.W. s vision problems were worsening every week. [AR at 168.] 3 The testimony of lay witnesses, including family members, about their own observations 4 regarding a claimant s impairments constitutes competent evidence that must be considered by 5 the Commissioner in the disability evaluation. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 6 (9th Cir. 2006) (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). In disability cases 7 where the child is unable to adequately describe her symptoms, the Commissioner accepts the 8 testimony of a person most familiar with the child s condition, such as a parent. Smith ex rel. 9 Enge v. Massanari, 139 F. Supp. 2d 1128, 1134 (C.D. Cal. 2001) (quoting Brown v. Callahan, 120 10 F.3d 1133, 1135 (10th Cir. 1997)) (citing 20 C.F.R. § 416.928(a)). In such circumstances, the 11 testimony of a parent is a particularly valuable source of information because a parent usually 12 sees the child every day. 20 C.F.R. § 416.924a(a)(2)(i). Such lay testimony cannot be discounted 13 unless the ALJ provides specific reasons that are germane to that witness for doing so. Bruce v. 14 Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 15 Cir. 1996)); see Smith ex rel. Enge, 139 F. Supp.2d at 1134; Merrill ex rel. Merrill v. Apfel, 224 16 F.3d 1083, 1085-86 (9th Cir. 2000) (applying same standard to mother of child applicant for 17 Supplemental Security Income payments). Failure to consider lay testimony will be considered 18 harmless error only if the reviewing court can confidently conclude that no reasonable ALJ, when 19 fully crediting the testimony, could have reached a different disability determination. Stout v. 20 Comm r of Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). 21 In this case, the ALJ failed to provide a specific reason germane to plaintiff for discrediting 22 her testimony and subjective statements in the forms she completed. While an ALJ may certainly 23 find testimony not credible and disregard it ..., [courts] cannot affirm such a determination unless 24 it is supported by specific findings and reasoning. Robbins, 466 F.3d at 884-85. Here, the ALJ 25 in his credibility determination with regard to plaintiff s testimony and written statements failed to 26 provide any analysis, instead merely summarizing certain medical evidence. [See AR at 14-15.] 27 Specifically, after summarizing some of plaintiff s testimony and subjective statements, the ALJ 28 found that M.V.W. s medically determinable impairment could reasonably be expected to produce 7 1 the alleged symptoms, but that the statements concerning the intensity, persistence, and limiting 2 effects of [M.V.W. s] symptoms are not entirely credible. [AR at 14.] 3 The ALJ did not provide a legitimate reason germane to plaintiff for discounting her 4 credibility. To the extent the ALJ implicitly rejected plaintiff s testimony and written statements as 5 being unsupported by the medical evidence, an ALJ cannot rely solely on an absence of 6 supporting medical evidence to reject lay witness testimony. See Bruce, 557 F.3d at 1116 ( Nor 7 under our law could the ALJ discredit [a claimant s wife s] lay testimony as not supported by 8 medical evidence in the record. ) (citing Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996)); 9 see also Smith ex rel. Enge, 139 F. Supp. at 1134 (the ALJ erred in implicitly rejecting the 10 testimony of the mother of a minor claimant regarding the extent and limiting effects of her 11 daughter s asthma symptoms). In any event, the medical expert testimony supported much of 12 plaintiff s testimony and written statements concerning the existence of plaintiff s symptoms.2 The 13 ALJ gave no other valid reason for discrediting plaintiff s testimony and subjective statements. 14 Remand is warranted for the ALJ to properly assess plaintiff s testimony, subjective statements 15 in the forms, and credibility. 16 17 18 19 20 21 22 23 24 25 26 27 28 2 At the hearing, board certified pediatrician Dr. Colin P. Hubbard gave expert testimony about M.V.W. s condition. [AR at 44-47, 49-56, 58-69, 242.] Although Dr. Hubbard opined that M.V.W. s diabetes does not meet, medically equal, or functionally equal any of the childhood Listings [AR at 50-53], he also testified that juvenile diabetes could cause the symptoms described by plaintiff. First, Dr. Hubbard stated that M.V.W. s headaches as described by plaintiff may be caused by ketoacidosis or high blood sugar and that [h]igh blood sugar over a period of time will certainly cause [the] blurred vision that plaintiff testified about. [AR at 53, 64; see AR at 32-37.] Second, in response to plaintiff s testimony about M.V.W. s night sweats, Dr. Hubbard stated that low blood sugar levels could in fact cause a person to be clammy and sweaty. [AR at 54; see AR at 146.] Third, Dr. Hubbard stated that urinary incontinence, a symptom of M.V.W. that plaintiff listed in the disability forms, indicates high blood sugar levels. [AR at 54-55; see AR at 146, 166, 169.] Fourth, Dr. Hubbard stated that M.V.W. s spilling of ketones into his urine as testified by plaintiff is consistent with high blood sugar levels. [AR at 58; see AR at 56-58.] Fifth, Dr. Hubbard agreed that plaintiff s testimony concerning M.V.W. s complaints about how he feels would be consistent given the elevated blood sugars. [AR at 66; see AR at 56-57.] Lastly, Dr. Hubbard stated that if M.V.W. is developing ketoacidosis, then ketoacidosis would show up on the strips that plaintiff uses to test the ketone levels in M.V.W. s urine. [AR at 66; see AR at 57-58.] Specifically, Dr. Hubbard stated that M.V.W. would have ketoacidosis in his urine before he has it significantly in the blood, which, according to Dr. Hubbard, would indicate that M.V.W. s diabetes is not controlled. [AR at 66-67.] 8 1 2. Mr. Shahin s Subjective Statements 2 On April 3, 2006, Mr. Shahin completed a Teacher Questionnaire from the Social Security 3 Administration, stating that he knew M.V.W. from the 2005-2006 school year and saw him on a 4 daily basis. [AR at 196-203.] Mr. Shahin reported an unusual degree of absenteeism by M.V.W. 5 due to his poor health. [AR at 196.] Mr. Shahin also noted that while M.V.W. s actual grade level 6 was first grade, M.V.W. s reading and written language levels were at kindergarten instruction 7 levels. [Id.] Mr. Shahin also assessed the functional limitations caused by M.V.W. s impairment 8 in each of the six domains. [AR at 197-202.] First, Mr. Shahin reported that M.V.W. had problems 9 acquiring and using information, in that M.V.W. is not independent in reading and writing, does 10 best when working individually with an adult, and is getting extra help daily ... but progress is very 11 slow. [AR at 197.] Second, Mr. Shahin stated that M.V.W. had problems attending and 12 completing tasks, in that M.V.W. must work separately from the other students because he talks 13 and disturbs them. [AR at 198.] Mr. Shahin also observed that M.V.W. at times appears very 14 sleepy and lays his head down on his desk. [Id.] Third, Mr. Shahin stated that M.V.W. had 15 problems interacting and relating with others. [AR at 199.] Mr. Shahin reported having to 16 implement behavior modification strategies for M.V.W. by placing M.V.W. at a desk by himself 17 due to talking. [Id.] Mr. Shahin also noted that when M.V.W. gets frustrated or angry[,] he shuts 18 down[,] ... usually goes under a table[,] and will not tell me what is bothering him. [Id.] Fourth, 19 Mr. Shahin stated that M.V.W. had no problems moving about and manipulating objects. [AR at 20 200.] Fifth, Mr. Shahin indicated that M.V.W. had several problems caring for himself, as he is 21 frustrated because he is behind the other children and does not handle his frustration 22 appropriately at times by withdrawing and giving up. [AR at 201.] Lastly, Mr. Shahin stated that 23 M.V.W. suffers from hyperglycemia, which caused him to miss a lot of school[,] and that [h]e has 24 fallen behind in school as a result. [AR at 202.] However, Mr. Shahin stated that M.V.W. s 25 health seems to be more stable now and [his] attendance is better. [Id.] Mr. Shahin also noted 26 that M.V.W. takes medication regularly, which improves his alertness. [Id.] 27 As M.V.W. s former teacher, Mr. Shahin qualifies as an other source under the Social 28 Security Administration s regulations. See 20 C.F.R. §§ 404.1513(d)(2), 416.913(d)(2). Although 9 1 an ALJ may give more weight to an opinion of an acceptable medical source over an other 2 source (see 20 C.F.R. § 416.927; Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996)), the ALJ 3 may not completely disregard an opinion from an other source merely because it is not an 4 acceptable medical source. See Social Security Ruling3 06-03p ( [T]here is a requirement to 5 consider all relevant evidence in an individual s case record ); see also Sprague v. Bowen, 812 6 F.2d 1226, 1232 (9th Cir. 1987) (noting that regulations require an ALJ to consider observations 7 even by non-medical sources ). As the Social Security Administration has recognized, the case 8 record should reflect the consideration of opinions from medical sources who are not acceptable 9 medical sources and from non-medical sources who have seen the claimant in their professional 10 capacity .... [T]he adjudicator generally should explain the weight given to opinions from these 11 other sources[.] SSR 06-03p. Although [the regulations] do not address explicitly how to 12 evaluate evidence (including opinions) from other sources, they do require consideration of such 13 evidence when evaluating an acceptable medical source s opinion. Id. 14 In this case, the ALJ properly considered and explained the weight given to the subjective 15 statements of Mr. Shahin as an other source and as a lay witness. In the decision, the ALJ 16 summarized some of Mr. Shahin s comments in the questionnaire and acknowledged giving 17 significant consideration to the questionnaire. [AR at 15.] The ALJ apparently credited Mr. 18 Shahin s statements that M.V.W. has higher absenteeism than other children and experiences 19 difficulties with hyperglycemia, but that he is improving and his alertness improves after taking 20 prescribed medication. [Id.; see AR at 202.] The ALJ ultimately gave less weight to Mr. Shahin s 21 conclusions regarding [M.V.W. s] academic and social functioning relevant to the six domains 22 discussed above. [AR at 15.] First, the ALJ pointed to the Loma Linda University Children s 23 Hospital Progress Notes dated August 10, 2007, indicating, among other things, M.V.W. s 24 academic progress. [See AR at 15, 274-77.] Specifically, the ALJ noted that M.V.W. s progress 25 26 27 28 3 Social Security Rulings ( SSR ) do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 10 1 notes state that while M.V.W. was held back in school from being ill so frequently in the first 2 grade, he has since caught up and is taking advanced coursework in the [second] grade. [AR 3 at 15, citing AR at 276.] M.V.W. s progress notes also state that he has never required testing 4 for a learning disability or problems related to behavior issues. [AR at 276.] The ALJ also 5 referred to the testimony of both plaintiff and M.V.W. regarding M.V.W. s current grades to further 6 show his academic progress since the date of the questionnaire. [AR at 15.] In the questionnaire, 7 Mr. Shahin noted that M.V.W. s progress is very slow, he is so far behind now in school, and 8 he was at kindergarten reading and written language levels even though he was in first grade. [AR 9 at 196-97, 202.] However, at the hearing, M.V.W. testified that he is currently in second grade, 10 enjoys doing schoolwork, and is getting A grades. [AR at 28.] When asked about M.V.W. s 11 current grades, plaintiff stated that M.V.W. is doing okay and is getting B grades. [AR at 29.] 12 The contrast between Mr. Shahin s statements in the questionnaire about M.V.W. s very slow 13 progress and the evidence cited by the ALJ demonstrating M.V.W. s academic improvement is a 14 specific and germane reason for giving Mr. Shahin s statements about M.V.W. s academic and 15 social problems less weight. See Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d 1155, 1164 16 (9th Cir. 2008) (an ALJ s finding that a classmate s testimony about the claimant was inconsistent 17 with evidence showing that the claimant successfully completed continuous full-time coursework 18 is a proper basis on which to reject [the] testimony that is germane to the classmate).4 19 Accordingly, remand is not warranted on this issue. 20 / 21 / 22 / 23 / 24 25 26 27 28 4 Plaintiff contends that [i]f the ALJ was inclined to disregard [Mr. Shahin s] questionnaire form and those reported findings therein, the ALJ should have informed [M.V.W. s] counsel in this regard so that [M.V.W. s] counsel might have obtained an updated questionnaire from [M.V.W. s] current teacher which would have shed a significant amount of light on [M.V.W. s] current level of functioning in the classroom setting. [JS at 13-14.] The Court rejects this argument as plaintiff bears the burden of proving that M.V.W. s impairment meets or equals a listed impairment. 11 1 VI. 2 REMAND FOR FURTHER PROCEEDINGS 3 As a general rule, remand is warranted where additional administrative proceedings could 4 remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 5 Cir. 2000), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 6 1984). In this case, remand is appropriate for the ALJ to properly consider plaintiff s testimony, 7 written statements, and credibility. The ALJ is instructed to take whatever further action is deemed 8 appropriate and consistent with this decision.5 9 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for remand is granted; 10 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 11 for further proceedings consistent with this Memorandum Opinion. 12 13 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 14 15 16 DATED: August 16, 2010 17 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 5 28 In light of the Court s remand order, the Court does not address plaintiff s remaining contention of error. 12

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