Loren C Marquez v. Michael J Astrue, No. 5:2011cv01966 - Document 20 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. [SEE ORDER FOR FURTHER DETAILS] (gr)

Download PDF

1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 LOREN C. MARQUEZ, o/b/o A.N.M., 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 11-01966-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. 21 consented that the case may be handled by the Magistrate Judge. 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 record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) conducted a 1 full and fair hearing; 2 2. Whether Plaintiff s disability ceased on March 1, 2004; 3 3. Whether any of Plaintiff s impairments or the combination of 4 here impairments meet or medically or functionally equal the 5 Listing; 6 4. Whether the ALJ properly relied on Dr. Meyer s, Dr. 7 Townsend s and Dr. Taylor s reports and on Plaintiff s 8 teacher s questionnaire; 9 5. 10 11 12 13 Whether the ALJ improperly rejected Dr. Shuhaibars s and Dr. Heindelman s reports; and 6. Whether the ALJ properly assessed Plaintiff s mother s credibility. (JS at p. 13.) 14 15 This Memorandum Opinion will constitute the Court s findings of 16 fact and conclusions of law. After reviewing the matter, the Court 17 concludes that the decision of the Commissioner must be affirmed. 18 19 INTRODUCTION AND PROCEDURAL HISTORY 20 This case comes back to the Court following a Judgment remanding 21 the case for new hearing consistent with a Memorandum Opinion issued 22 by the Court on April 20, 2009. (See AR at 214, 215-226.) 23 Following the Judgment, a different ALJ conducted a new hearing 24 on February 24, 2010 (AR 424-444), at which Plaintiff appeared, 25 represented by counsel (the same counsel who represents her in this 26 action), and testimony was taken from Dr. Kania, appearing as a 27 Medical Expert ( ME ). 28 resumed on June 25, 2010, at which time Plaintiff appeared with the The matter was adjourned and the hearing 2 1 minor claimant A.N.M. (hereinafter Claimant ), represented by the 2 same counsel, and Dr. Kania again appeared and testified as an ME. (AR 3 445-491.) 4 5 The ALJ issued an unfavorable decision on November 18, 2010. (AR 184-201.) 6 This action followed. The Claimant was born on September 4, 2001. On October 5, 2001, 7 the Claimant, by and through her mother, filed an application for 8 benefits under Title XVI of the Social Security Act ( Act ). (AR 88- 9 91.) That claim was granted on October 30, 2001, retroactive to the 10 date of birth, based on Claimant s extremely low birth weight, which 11 functionally equaled the severity of the impairment listed at 20 12 C.F.R. § 404, Subpart P, Appendix 1, Section 100.02. 13 benefits 14 condition had improved. (AR 42, 44.) 15 decision, which was administratively denied, but, as noted above, 16 after Claimant s mother filed an action in this Court. Judgment was 17 entered on April 20, 2009 for Claimant, remanding the matter to the 18 Commissioner for further proceedings. were terminated on the ground that In March 2004, Claimant s medical Claimant s mother appealed that 19 20 ALJ Decision. 21 In the ALJ s lengthy Decision, he ultimately concluded that the 22 Claimant was no longer disabled as of June 1, 2004. (AR at 184.) 23 ALJ concluded that since June 1, 2004, Claimant has had severe 24 impairments of attention deficit hyperactivity disorder ( ADHD ), and 25 a learning disorder, pursuant to 20 C.F.R. § 416.924(c). (AR 194.) He 26 also concluded that since the same date, Claimant has not had an 27 impairment or combination of impairments that meets or medically 28 equals one of the listed impairments in 20 C.F.R. Part 404, subpart B, 3 The 1 Appendix 1, nor have any of her impairments functionally equaled any 2 of the listings. (AR 195.) 3 4 Applicable Law re Childhood Disability: Cessation or Existence of 5 Disability. 6 With regard to the procedures which must be followed to examine 7 whether a child s disability has ceased, a three-step evaluation 8 process is incorporated in 20 C.F.R. § 416.994a(b); see SSR 05-03p. 9 At the first step, the question is whether there has been medical 10 improvement in the impairment(s) which formed the basis of the most 11 recent 12 416.994a(b)(1).) 13 impairment(s), a finding must be made that the child s disability 14 continues. 15 to Step Two, which focuses on whether the impairment(s) still meets or 16 medically 17 impairment. If the impairment(s) does not meet or medically equal the 18 severity of the Listing, the inquiry proceeds to the third step, which 19 requires a determination of whether the child s current impairment(s) 20 are disabling under the rules set out in 20 C.F.R. § 416.024. 21 step to determine current disability are described in 20 C.F.R. § 22 994a(b)(3)(i)-(iii). 23 child has a severe impairment or combination of impairments, whether 24 this impairment(s) meets or medically equals the severity of any of 25 the Listings, and if not, whether the impairment(s) functionally 26 equals the Listings. (See, infra, for further discussion of applicable 27 law.) 28 // favorable determination or decision. (See 20 C.F.R. § If there has been no medical improvement in that If there has been medical improvement, the inquiry shifts or functionally equals the severity of the listed The These steps require determination of whether a 4 1 I 2 THE ALJ CONDUCTED A FULL AND FAIR HEARING 3 In her first issue, Plaintiff contends that the ALJ failed to 4 conduct a full and fair hearing, for several reasons. First, that the 5 ALJ inappropriately or arbitrarily thwarted examination by Plaintiff s 6 counsel, and second, that the ALJ failed to resume the hearing, as he 7 had allegedly promised he would do at the conclusion of the second 8 session. For the following reasons, these contentions have no merit. 9 First, having reviewed the record, the Court does not perceive 10 that the ALJ inappropriately curtailed examination by Plaintiff s 11 counsel. 12 were provided to these questions. (AR 468-476.) 13 only to indicate that some of counsel s questions were poorly formed 14 and would not elicit a reasonable response. (AR 471-473.) 15 attempted to read verbatim from the record, which resulted in the ALJ 16 reminding counsel that there were time limits of which he should be 17 aware. (Id.) 18 inappropriately limited in his examination. Counsel posed numerous questions of the ME and responses The ALJ interrupted Counsel All in all, the Court does not perceive that counsel was 19 Plaintiff s second point is that the ALJ failed to resume the 20 hearing, which resulted in prejudice to Plaintiff meriting a remand 21 for further hearing. 22 ALJ indicated he considered resuming the hearing, but that this would 23 be 24 clarification 25 occurred for Claimant before 2006. (AR 490-491.) 26 stated that a supplemental hearing would not occur unless Plaintiff 27 provided these medical records for the period of 2004 and 2005. (AR 28 249, 490-491.) dependent and of The record, though, actually indicates that the contingent medical upon records as Plaintiff to medical providing some treatment which Indeed, the ALJ The ALJ thus continued that hearing giving sufficient 5 1 time to allow Plaintiff to obtain these medical records, which 2 Plaintiff failed to do. (AR 437, 250.) Consequently, the Court cannot 3 and does not conclude that the ALJ s decision not to hold a third 4 session of the hearing caused such prejudice to Plaintiff that her due 5 process rights were violated. 6 333 (1976); Solis v. Schweiker, 719 F.2d 301, 302 (9th Cir. 1983). 7 Fundamentally, the Court concludes that the ALJ acted within his 8 discretion in making this determination. See Mathews v. Eldridge, 424 U.S. 319, 9 10 II 11 ISSUES 2, 3 AND 4 DO NOT PROVIDE GROUNDS FOR REVERSAL 12 The Court will address the second through fourth issues raised by 13 Plaintiff together. 14 ceased on June 1, 2004 (Issue No. 2);1 whether any of Claimant s 15 impairments 16 functionally equal a Listing (Issue No. 3); and whether the ALJ 17 properly relied upon evidence in the record from Drs. Meyer, Townsend, 18 and Taylor, and on the Claimant s teacher s Questionnaire (Issue No. 19 4). or This concerns whether Claimant s disability combination of impairments meet or medically or 20 Plaintiff contends that the ALJ found that Claimant s disability 21 ceased solely on the basis that her conditions of low birth weight and 22 prematurity had improved. 23 ALJ s current Decision. 24 of the date of the Comparison Point Decision (AR 188), and also 25 impairments that This does not properly encapsulate the The ALJ evaluated Claimant s impairments as occurred after that date. (AR 194.) The ALJ 26 27 28 1 As framed by Plaintiff, the issue is whether Claimant s disability ceased on March 1, 2004; however, the ALJ s Decision concluded that the disability ceased on June 1, 2004. 6 1 evaluated whether any of these found impairments were disabling 2 according to the requirements of the Listings. (AR 188-201.) As noted, 3 the 4 determined that they did not meet or equal Listing level severity. (AR 5 194-200.) 6 relied upon a June 2004 medical report which indicated that the 7 original disabling condition of low birth weight and prematurity had 8 improved. (AR 137-188.) ALJ found that Claimant had other severe impairments but Finding that disability ceased as of June 1, 2004, the ALJ 9 Further, Plaintiff s argument that the ALJ was precluded from 10 reevaluating whether the Claimant s disabilities ceased because of the 11 law of the case doctrine is a misplaced argument. 12 purpose of the Court s previous Judgment ordering remand and a further 13 hearing was to allow further evidence to be obtained and examined so 14 that these issues could be properly evaluated and decided. Indeed, the very 15 Having found that the ALJ properly determined that the disabling 16 condition had ceased, the Court s next task is to address whether the 17 ALJ correctly decided that Claimant is not disabled by virtue of 18 current impairments that were found in the Decision. 19 As to the third issue, Plaintiff s contention is that Claimant s 20 impairments medically equal Listing 2.09, which concerns speech 21 disorder, and also Listing 112.05, for mild mental retardation (see JS 22 at 22). 23 functional equivalence for children, Claimant satisfies three of the 24 applicable domains set out in 20 C.F.R. § 416.926a(b)(i)-(iii). Plaintiff argues that under the regulations concerning 25 As set out in the discussion of applicable law, supra, it was the 26 ALJ s task to determine whether Claimant has an impairment(s) which 27 functionally equals the Listings. 28 her impairment(s) must cause marked functional limitations in two In order to satisfy that standard, 7 1 domains of functioning, or extreme limitations in one domain. 2 domains set out in the regulations are the following: 3 (i) Acquiring and using information; 4 (ii) Attending and completing tasks; 5 (iii) Interacting and relating with others; 6 (iv) Moving about and manipulating objects; 7 (v) Caring for yourself; and 8 (vi) The Health and physical well-being. 9 10 The term marked is defined as a limitation which exists when 11 your impairment(s) interferes seriously with your ability to 12 independently initiate, sustain or complete activities. (See 20 13 C.F.R. § 416.926a(e)(ii).) 14 The ALJ examined evidence (see, infra) to make his determination 15 that Claimant did not meet or equal any of the Listings under the 16 applicable regulations. 17 only 18 substantial evidence which reasonably supported his conclusion. 19 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). to determine It must be noted that the Court s task is whether the ALJ s Decision is supported by See The ALJ obtained testimony at the hearing from ME Dr. Kania, who 20 21 had reviewed the entire medical record. (AR 454-476.) 22 Kania s conclusion that Claimant did not meet or equal a Listing in 23 that her impairments did not cause marked limitations in any of the 24 functional domains. (AR 467.) In making this determination, Dr. Kania 25 took into account Claimant s performance over a period of time, noting 26 that 27 factored into the evaluation. (AR 474-475.) 28 children have different developmental rates It was Dr. which must be The ALJ also relied upon a psychological consultative examination 8 1 ( CE ) by Dr. Townsend, who tested and examined Plaintiff in 2009, 2 when she was eight years old. (AR 387-402.) 3 that Claimant s intellectual functioning was in the average to low 4 average range. (AR 401.) Dr. Townsend determined 5 Previously, another psychological CE was performed by Dr. Taylor, 6 who reviewed medical records, and tested and examined Claimant when 7 she was three years old. (AR 147-151.) 8 Claimant has mild impairment in her cognitive development, social 9 development, and concentration, persistence and pace, in addition to 10 mild to moderate impairment in her communication development and 11 response to stimuli. (AR 147-151.) 12 Dr. Taylor concluded that The ALJ s Decision also contains an extensive examination of 13 Claimant s school records. 14 conclusion - that Claimant performed academically at or near her grade 15 level 16 supported by substantial evidence. (See AR at 264-267, 281-286, 296, 17 372, 387.) While Plaintiff takes great pains to point out, and the 18 record does support that Claimant had some behavioral problems at 19 school (Id.), the ALJ s conclusion was that, nevertheless, Claimant s 20 impairments do not satisfy the Listings, or equal them in severity. 21 The record does support the existence of some behavioral problems of 22 different types and at varying times in Claimant s school performance 23 (see summary by Plaintiff at JS 25-27). The Court disagrees, however, 24 that these behavioral problems undermine the ALJ s conclusion that 25 Claimant did not show marked limitations in the three stated domains. 26 Indeed, what the Court does observe is that many of the behavioral 27 problems which are described in the record and which Plaintiff asserts 28 actually exist are, rather, based on the reporting of Claimant s while exhibiting The Court cannot find that the ALJ s different 9 behavioral problems - is not 1 mother, which is often inconsistent with the actual observations of 2 school 3 professionals who rendered opinions that were relied upon by the ALJ. 4 In Plaintiff s fourth issue (see JS at 33-48) she essentially 5 argues that the ALJ improperly relied upon opinions rendered by Drs. 6 Meyer, Taylor, Townsend, teacher Ms. Cutler, and the ME. 7 outset, the Court must again note that it is not its function to 8 reweigh or reevaluate evidence, but rather, only to determine whether 9 substantial evidence supports the Decision. personnel, or the conclusions 10 review, Plaintiff s argument fails. 11 examine 12 of various mental health At the Under this level of conclusion. Plaintiff s arguments to But, the Court will briefly indicate why it reaches that 13 First, Plaintiff erroneously concludes that this Court, in its 14 previous Memorandum Opinion, determined that Dr. Taylor s opinion did 15 not deserve any deference (see JS at 33, citing Memorandum Opinion, 16 contained at AR 222-223). 17 basis for the remand. 18 upon a whole panoply of evidence not available to the previous ALJ in 19 rendering his current Decision. 20 That was not the Court s conclusion or the In any event, the fact is that the ALJ relied As to both Drs. Taylor and Townsend, the record indicates that 21 they did perform 22 reviewed 23 narrative. 24 reflects advocacy posturing (JS at 33), the Court does not perceive 25 that, nor does Plaintiff s argument in this regard seem at all 26 persuasive. 27 provide a diagnosis, but this does not render Dr. Taylor s report 28 unreliable. medical While objective testing evidence, and Plaintiff and their contends observed reports that Dr. Claimant, are detailed Taylor s they and opinion Plaintiff also complains that Dr. Taylor failed to The ALJ must make a disability determination based on 10 1 functional limitations which are the result of any impairments that 2 are found. It is not essential that there be a diagnosis in order to 3 accomplish this 4 deficiencies in the IQ testing are based upon an asserted failure of 5 the ALJ to convert Claimant s IQ scores to a standard deviation 6 measurement. 7 112.05, the IQ standard deviation is already accounted for. 8 the Court cannot find any substantiation for Plaintiff s apparent 9 argument that IQ scores must be expressed in terms of standard 10 task. Further, Plaintiff s arguments about This argument is without merit, since under Listing Further, deviations. 11 With regard to the ALJ s reliance, in part, on the opinions of 12 the examining physicians, and the ME, the Court finds these arguments 13 insufficient to overturn the Decision. 14 argues 15 testimony he provided at the hearing was tied to his citations to 16 evidence in the record. (AR 454-476.) Further, Plaintiff asserts that 17 Claimant suffered from autism, but none of the independent examining 18 physicians made that diagnosis, and the ME concluded that the record 19 as a whole fails to support a diagnosis of autism. 20 noted, whether or not Claimant suffered from autism is not the point; 21 rather, functional limitations resulting from impairments are the 22 issue. that his opinion was As to the ME, while Plaintiff totally worthless, the extensive In any event, as 23 As to Plaintiff s argument that Ms. Cutler was unqualified to 24 opine as to Claimant s behavior, because she only observed her for 25 seven months, the Court finds no merit in that argument, in that the 26 amount of time seems more than sufficient. 27 Plaintiff s extensive citation to the record with regard to the 28 fourth issue certainly highlights some behavioral issues and problems 11 1 which Claimant manifested, but again, the question is whether Claimant 2 has disabling symptoms, not whether there are behavioral problems. 3 Here, as the Court has previously noted, the conclusion is that 4 substantial evidence supports the ALJ s determination that disabling 5 conditions do not exist. 6 7 III 8 THE ALJ DID NOT IMPROPERLY REJECT OPINIONS 9 FROM DRS. SHUAHAIBAR, HEINDSELMAN, AND A TEAM OF EXPERTS 10 In Plaintiff s fifth issue, she contends the ALJ improperly 11 rejected opinions of these named individuals. The ALJ s evaluation of 12 their reports is contained at AR 196-197. 13 accord significant weight to these opinions. 14 The ALJ determined not to The extent of contact between these individuals and Claimant is 15 not extensive. Dr. Shuahaibar apparently saw Claimant two times: in 16 June 2006 and April 2010. (AR 153-156, 412.) Dr. Heindselman provided 17 a one-page report in January 2007 (AR 157), which is noted to be based 18 upon the psychiatric evaluation of Dr. Shuahaibar, reports from 19 Claimant s mother, or observations of the Claimant by either Dr. 20 Shuahaibar or Dr. Heindselman. 21 apparently provided Plaintiff with any treatment, and there are no 22 treatment notes. 23 of Claimant s functional limitations. 24 their opinions because he noted they were not consistent with the 25 overall record. (AR 196.) Indeed, the Court concurs with the ALJ that 26 the reports of Drs. Heindelsman and Shuahaibar incorporate and appear 27 to be somewhat based upon the subjective reporting of Claimant s 28 mother, which the ALJ found to be less than credible. (AR 196-199.) Neither of these two individuals Dr. Shuahaibar did not provide an opinion as to any 12 The ALJ gave less weight to 1 Much of the apparent behavior reported, for example, by Dr. 2 Heindelsman, such as that Plaintiff has been observed to rock and bang 3 her head and bite herself is not corroborated by numerous other 4 longitudinal records, such as school records. 5 Heindelsman indicated that Claimant had problems speaking, school 6 reports contradict this, and indeed indicate that she was able to 7 communicate very effectively. (AR 297, 309, 328, 378, 387.) In addition, while Dr. 8 With regard to the expert team cited by Plaintiff, the ALJ 9 reviewed the report, which is from the Mojave Vista Elementary (AR 10 194, 197-198). 11 some behavioral areas but was working close to her grade level in 12 academics (AR 295-309). 13 14 This report indicates that Claimant had problems in All in all, the Court concludes that the ALJ gave appropriate weight to all of these opinions. 15 16 IV 17 THE ALJ S DETERMINATION AS TO PLAINTIFF S CREDIBILITY 18 IS SUPPORTED BY SUBSTANTIAL EVIDENCE In her final issue, Plaintiff argues that the ALJ improperly 19 20 depreciated her credibility. She contends that the ALJ incorrectly 21 found that she provided inconsistent statements. (JS 61, citing AR at 22 197.) 23 to 24 Questionnaire, and Plaintiff reasserts her argument that the Teacher 25 Questionnaire is not entitled to be viewed as a credible document, for 26 reasons articulated in the fifth issue. For example, the ALJ noted that the claims made by Plaintiff as Claimant s behavior were not supported by the Teacher 27 It is the ALJ s duty to provide specific reasons germane to a 28 particular witness s testimony in order to discount the credibility of 13 1 that lay testimony. See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2 2009). 3 that Claimant s mother refused to assist with the CE conducted by Dr. 4 Townsend. (AR 194, 401.) She refused to answer some of Dr. Townsend s 5 questions. (Id.) She refused to set aside her magazine in order to 6 answer questions. Although Plaintiff disagrees, the Court concludes 7 that this is a valid reason, among others, to discount Plaintiff s 8 credibility. The reasons cited by the ALJ in the Decision include the fact 9 With regard to the ALJ s notation that Claimant s mother provided 10 inconsistent statements to different physicians, such as her report 11 that Claimant cuts herself with a razor, bangs her head, and injures 12 herself, the ALJ properly noted that while Plaintiff made such 13 complaints to Dr. Shuahaibar (AR 196, 153), she did not make such 14 reports to either Drs. Taylor or Townsend. (AR 148-149, 196, 397-398.) 15 Such 16 determining credibility. 17 (9th Cir. 2012). 18 inconsistencies may properly be considered by an ALJ in See Molina v. Astrue, 674 F.3d 1104, 1112 Finally, the medical and school records substantially contradict 19 the testimony of Claimant s mother, as the ALJ noted. (AR 197-199.) 20 All of the examining and reviewing physicians agree that Claimant was 21 not as functionally limited as Plaintiff s mother alleged. 22 also evident in the school records, which indicate behavior problems, 23 but also demonstrate that Claimant academically functioned at or near 24 her grade level. 25 This is All in all, the Court finds that the credibility determination is 26 supported by substantial evidence. 27 Plaintiff claims that her failure to cooperate with Dr. Townsend s 28 examination is not relevant to her credibility, because she is not the 14 It should be noted that while 1 Claimant, the Court finds that applicable case law is supportive of 2 the principle that a failure to cooperate with an examining physician 3 is an indicator of lack of credibility. 4 here was a very young child is also relevant, in that the mother s 5 cooperation would be very material to the success of the examination. 6 The Court sees no basis to distinguish case law which provides that 7 failure to cooperate by a claimant is a ground for diminishing 8 credibility. 9 applicable. 10 11 12 The fact that the Claimant In the context of this case, the same principles are The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 13 14 15 DATED: November 8, 2012 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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.