Martinez obo OAS a minor child v. Commissioner of Social Security, No. 1:2017cv03201 - Document 23 (E.D. Wash. 2018)

Court Description: ORDER GRANTING 19 DEFENDANT'S MOTION FOR REMAND AND GRANTING 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN PART. Case is closed. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator)

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Martinez obo OAS a minor child v. Commissioner of Social Security Doc. 23 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Nov 30, 2018 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 VERONICA M. O/B/O OAS, a minor child, NO: 1:17-CV-3201-FVS 8 Plaintiff, 9 v. 10 11 12 COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART Defendant. 13 14 BEFORE THE COURT IS Defendant’s Motion for Remand, ECF No. 19, and 15 Plaintiff’s Motion for Summary Judgment, ECF No. 12. This matter was submitted 16 for consideration without oral argument. Plaintiff is represented by attorney D. James 17 Tree. Defendant is represented by Special Assistant United States Attorney Justin L. 18 Martin. The Court, having reviewed the administrative record and the parties’ 19 briefing, is fully informed. For the reasons discussed below the Court GRANTS 20 Defendant’s Motion for Remand, ECF No. 19, and GRANTS in part Plaintiff’s 21 Motion for Summary Judgment, ECF No. 12. ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 1 Dockets.Justia.com 1 JURISDICTION 2 Plaintiff’s mother filed for supplemental security income (“SSI”) on behalf of 3 her minor child, OAS 1 (“Plaintiff”), on November 4, 2013, alleging an onset date of 4 June 20, 2004. Tr. 217-20. Benefits were denied initially, Tr. 127-29, and upon 5 reconsideration, Tr. 135-37. Plaintiff’s mother appeared at a hearing before an 6 administrative law judge (ALJ) on December 2, 2015, and at a second hearing before 7 the same ALJ on July 20, 2016. Tr. 47-79, 83-101. On August 1, 2016, the ALJ 8 denied Plaintiff’s claim, Tr. 20-37, and on October 4, 2017, the Appeals Council 9 denied review. Tr. 1-5. The matter is now before this Court pursuant to 42 U.S.C. § 10 1383(c)(3). 11 BACKGROUND 12 The facts of the case are set forth in the administrative hearing and transcripts, 13 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are therefore 14 only summarized here. 15 Plaintiff was born in 2004, Tr. 217, and was therefore 11 years old at the time 16 of the first hearing. He alleges disability due to epilepsy and a learning disorder. Tr. 17 244. In 2012, Plaintiff was determined to be eligible for special education services for 18 a specific learning disability. Tr. 652-59. School records also indicate significant 19 20 1 21 and last initial of Plaintiff’s mother throughout this decision. In the interest of protecting Plaintiff’s privacy, the Court will use the first name ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 2 1 behavioral problems, resulting in many suspensions and an expulsion from school. 2 Tr. 678, 694-95, 711-718. In May 2013, Plaintiff was diagnosed with epilepsy after 3 suffering a seizure. Tr. 454, 490-92. His seizures are generally well-controlled with 4 medication. Tr. 726-28. 5 STANDARD OF REVIEW 6 A district court’s review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 9 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 10 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 11 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 12 citation omitted). Stated differently, substantial evidence equates to “more than a 13 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 14 In determining whether the standard has been satisfied, a reviewing court must 15 consider the entire record as a whole rather than searching for supporting evidence in 16 isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its judgment 18 for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 19 2001). If the evidence in the record “is susceptible to more than one rational 20 interpretation, [the court] must uphold the ALJ’s findings if they are supported by 21 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 3 1 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s decision on 2 account of an error that is harmless.” Id. An error is harmless “where it is 3 inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 4 (quotation and citation omitted). The party appealing the ALJ’s decision generally 5 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 6 396, 409-10 (2009). 7 8 THREE-STEP PROCESS FOR CHILDHOOD DISABILITY To qualify for Title XVI supplement security income benefits, a child under the 9 age of eighteen must have “a medically determinable physical or mental impairment, 10 which results in marked and severe functional limitations, and which can be expected 11 to result in death or which has lasted or can be expected to last for a continuous period 12 of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). The regulations provide a 13 three-step process to determine whether a claimant satisfies the above criteria. 20 14 C.F.R. § 416.924(a). First, the ALJ must determine whether the child is engaged in 15 substantial gainful activity. 20 C.F.R. § 416.924(b). Second, the ALJ considers 16 whether the child has a “medically determinable impairment that is severe,” which is 17 defined as an impairment that causes “more than minimal functional limitations.” 20 18 C.F.R. § 416.924(c). Finally, if the ALJ finds a severe impairment, she must then 19 consider whether the impairment “medically equals” or “functionally equals” a 20 disability listed in the “Listing of Impairments.” 20 C.F.R. § 416.924(c)-(d). 21 ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 4 1 If the ALJ finds that the child’s impairment or combination of impairments 2 does not meet or medically equal a listing, she must determine whether the 3 impairment or combination of impairments functionally equals a listing. 20 C.F.R. § 4 416.926a(a). 2 The ALJ’s functional equivalence assessment requires her to evaluate 5 the child’s functioning in six “domains.” These six domains, which are designed “to 6 capture all of what a child can or cannot do,” are as follows: 7 (1) Acquiring and using information: 8 (2) Attending and completing tasks; 9 (3) Interacting and relating with others; 10 (4) Moving about and manipulating objects; 11 (5) Caring for self; and 12 (6) Health and physical well-being. 13 20 C.F.R. § 416.926a(b)(1)(i)-(vi). A child’s impairment will be deemed to 14 functionally equal a listed impairment if the child’s condition results in a “marked” 15 limitation in two domains, or an “extreme” limitation in one domain. 20 C.F.R. § 16 416.926a(a). An impairment is a “marked limitation” if it “interferes seriously with [a 17 18 2 19 effective June 12, 2015 to October 6, 2016, which was the version in effect at the 20 time of the ALJ’s decision. Revisions to Rules Regarding the Evaluation of 21 Medical Evidence, 81 Fed. Reg. 37153 (June 9, 2016). All references to 20 C.F.R. § 416.926a refer to the version of the regulation ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 5 1 person’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. 2 § 416.926a(e)(2)(i). By contrast, an “extreme limitation” is defined as a limitation 3 that “interferes very seriously with [a person’s] ability to independently initiate, 4 sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i). 5 ALJ’S FINDINGS 6 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 7 activity since November 4, 2013, the application date. Tr. 24. At step two, the ALJ 8 found Plaintiff has the following severe impairments: seizure disorder, conduct 9 disorder, attention deficit-hyperactivity disorder, and specific learning disorder 10 (impairment in reading). Tr. 24. At step three, the ALJ found that Plaintiff does not 11 have an impairment or combination of impairments that meets or medically equals the 12 severity of a listed impairment. Tr. 25. The ALJ then found Plaintiff does not have an 13 impairment or combination of impairments that functionally equals the severity of the 14 listings. Tr. 26. Thus, the ALJ concluded that Plaintiff has not been disabled, as 15 defined in the Social Security Act, since November 4, 2013, the date the application 16 was filed. Tr. 36. 17 ISSUES 18 Plaintiff seeks judicial review of the Commissioner’s final decision denying 19 supplemental security income benefits under Title XVI of the Social Security Act. 20 ECF No. 12. Plaintiff raised the following issues for review: 21 ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 6 1 2 3 4 5 6 7 8 9 1. Whether the ALJ erred in finding that Plaintiff’s behavioral problems are not attributable to a mental disorder; 2. Whether the ALJ erred in finding that Plaintiff did not have a marked limitation in the domain of acquiring and using information; and 3. Whether the ALJ failed to fully and fairly develop the medical record. ECF No. 12 at 1. DISCUSSION Defendant concedes the ALJ should have evaluated Plaintiff’s conduct disorder under Listing 112.08 for personality and impulse-control disorders as a “closely 10 analogous listed impairment.” ECF No. 19 at 6 (citing 20 C.F.R. § 416.926). 11 Defendant also concedes that the ALJ should reconsider whether a consultative 12 psychiatric evaluation is necessary to evaluate Plaintiff’s functional limitations. ECF 13 No. 19 at 8. After reviewing the record, the Court concludes that remand is 14 appropriate based on the errors conceded by Defendant. On reply, Plaintiff contends 15 that remand for an immediate award of benefits is justified and no reconsideration of 16 the evidence is necessary. ECF No. 20 at 1-2. 17 The decision whether to remand for further proceedings or reverse and award 18 benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 19 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate where “no 20 useful purpose would be served by further administrative proceedings, or where the 21 record has been thoroughly developed,” Varney v. Secretary of Health and Human ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 7 1 Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by remand 2 would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 (9th Cir. 3 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (2014) (noting that a district 4 court may abuse its discretion not to remand for benefits when all of these conditions 5 are met). This policy is based on the “need to expedite disability claims.” Varney, 6 859 F.2d at 1041. But where there are outstanding issues that must be resolved before 7 a determination can be made, and it is not clear from the record that the ALJ would be 8 required to find a claimant disabled if all the evidence were properly evaluated, 9 remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 10 11 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). Plaintiff requests remand for an immediate award of benefits from November 4, 12 2013 to September 29, 2016, based on the favorable outcome of Plaintiff’s second 13 application for SSI dated September 30, 2016. ECF No. 20 at 1. On January 12, 14 2018, Plaintiff was awarded SSI benefits retroactive to September 30, 2016. ECF No. 15 21-1 at 3. Plaintiff asserts there is “overwhelming evidence” of disability, including 16 evidence of behavior problems so severe that he was expelled from school, and 17 evidence of poor academic achievement, as well as the January 2018 disability 18 finding. ECF No. 20 at 3. However, the Court concludes it is not clear that the record 19 dictates a disability finding because of the deficiencies in the record conceded by 20 Defendant. The record is not fully developed. Given the insufficiency of the ALJ’s 21 findings and the medical expert’s testimony with regard to Listing 112.08 and the ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 8 1 severe impairment of conduct disorder, the Court does not find clear evidence of 2 disability based on the record. 3 With regard to the later disability determination, the Court has no information 4 about the basis for the January 2018 disability finding or whether additional evidence 5 was received. The fact that a later favorable disability determination was made does 6 not necessarily compel a disability finding on the record before the Court. Thus, 7 remand for further proceedings is the appropriate remedy. See Luna v. Astrue, 623 8 F.3d 1032 (9th Cir. 2010) (“There was only one day between the denial of Luna’s first 9 application and the disability onset date specified in the award for her successful 10 second application, but she may have presented different medical evidence to support 11 the two applications, or there might be some other reason to explain the change. 12 Given this uncertainty, remand for further factual proceedings was an appropriate 13 remedy.”) 14 On remand, Plaintiff suggests the ALJ is required to obtain a psychiatric 15 evaluation, ECF No. 12 at 18-19, while Defendant requests that a psychiatric 16 evaluation be obtained “if possible.” ECF No. 19 at 12. “One of the means available 17 to an ALJ to supplement an inadequate medical record is to order a consultative 18 examination, i.e., ‘a physical or mental examination or test purchased for [a claimant] 19 at [the Social Security Administration's] request and expense.’ ” Reed v. Massanari, 20 270 F.3d 838, 841 (9th Cir.2001) (quoting 20 C.F.R. § 416.919). At the first hearing, 21 Dr. Grossman testified that the results of a psychiatric evaluation “would be relevant ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 9 1 information that I would be glad to look at and it may be helpful.” Tr. 67. At the end 2 of the hearing, the ALJ said he would request a psychiatric evaluation at the agency’s 3 expense. Tr. 77. In the decision, the ALJ reported: 4 10 Considerable effort was made to schedule a consultative psychiatric evaluation, but due to a cancellation by the psychiatrist, followed by a cancellation by the claimant due to a house fire, and finally, the previously scheduled consultative psychiatrist terminated his contract with the Agency. There was no other psychiatrist available in the area, so a consultative psychological evaluation was conducted. Exhibit (Ex.) 20F [Tr. 752-57]. The claimant’s representative has requested another consultative evaluation, but I do not find that warranted. Whether to send the claimant for a consultative evaluation is within the discretion of the Administrative Law Judge. [20 C.F.R. §] 416.917; HALLEX I-2-5-20. In the present case, I find that the record has been sufficiently developed that an additional consultative psychiatric evaluation is not necessary. 11 Tr. 21. Thus, the failure to supplement the record with a psychiatric evaluation was 12 caused by factors outside of the ALJ’s control.3 Notwithstanding, the same issues 13 remain undeveloped in the record, despite the ALJ’s assertion to the contrary. 14 Therefore, on remand, the ALJ is directed to obtain a consultative psychiatric 15 examination. 5 6 7 8 9 16 17 3 The responsibility for the consultative examination process rests not with the SSA 18 but with cooperating State agencies. 20 C.F.R. §416.919s(a). The State agencies 19 are responsible for recruiting qualified physicians to perform consultative 20 examinations. 20 C.F.R. § 416.919s(f)(1). 21 ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 10 1 Lastly, Plaintiff requests the Court limit the ALJ’s reconsideration “to any date 2 prior to September 30, 2016.” ECF No. 20 at 5. Defendant notes the regulations 3 provide that a disability determination may be reopened “for any reason” within 12 4 months of the decision, or for “good cause” within 24 months of the decision, 5 suggesting the January 2018 case could be reopened by the ALJ on remand of this 6 matter. ECF No. 19 at 11; 20 C.F.R. § 416.488(a). Plaintiff cites no authority 7 justifying the request to limit the ALJ’s reconsideration to the period before 8 September 30, 2106, asserting only that a reopening and reversal of the January 2018 9 determination would result in Plaintiff owing a sizeable repayment for benefits 10 already received, and that nothing in the ALJ’s July 2016 adjudication suggests an 11 error was made in the January 2018 determination of disability. ECF No. 20 at 1, 5. 12 The Court finds no basis to make a conclusion about any error or lack of error in the 13 January 2018 disability determination, and no basis to disturb the procedures set forth 14 in the regulations on remand. 15 16 CONCLUSION After reviewing the record and the ALJ’s findings, the Court concludes that the 17 ALJ’s decision is not supported by substantial evidence and free of harmful legal 18 error. The matter must be remanded for reconsideration. On remand, the ALJ should 19 conduct a new hearing and (1) reevaluate the severity of all of Plaintiff’s mental 20 impairments, including consideration of Plaintiff’s conduct disorder and Listing 21 112.08, and any other applicable listing; (2) obtain a psychiatric consultative ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 11 1 examination; and (3) give further consideration to whether Plaintiff functionally 2 equals a Listing by reevaluating the evidence in the record and articulating the weight 3 given to the relevant medical opinions. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Defendant’s Motion for Summary Judgment Requesting Remand, ECF No. 6 19, is GRANTED. 7 8 9 2. Plaintiff’s Motion for Summary Judgment, ECF No. 12 is GRANTED in part. 3. This case is REVERSED and REMANDED for further administrative 10 proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. § 11 405(g). 12 4. An application for attorney fees may be made by separate motion. 13 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order 14 and provide copies to counsel. Judgment shall be entered for Plaintiff and the file 15 shall be CLOSED. 16 DATED November 30, 2018. 17 18 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 19 20 21 ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART ~ 12

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