Norman v. Colvin (previously Astrue), No. 2:2012cv03085 - Document 28 (E.D. Wash. 2013)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying pltf's 20 Motion for Summary Judgment; granting dft's 24 Motion for Summary Judgment; DCE shall enter judgment and close file. Signed by Senior Judge Fred Van Sickle. (LE, Case Administrator)
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Norman v. Colvin (previously Astrue) Doc. 28 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 SHAWNA NORMAN, O/B/O M.K, a minor child, NO: CV-12-3085-FVS 8 Plaintiff, 9 10 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CAROLYN W. COLVIN, Acting Commissioner of Social Security, 11 Defendant. 12 13 Before the Court are cross-motions for summary judgment, ECF Nos. 20, 14 20. The Court has reviewed the motions, the memoranda in support, the Plaintiff’s 15 reply memorandum, and the administrative record. 16 JURISDICTION 17 Plaintiff Shawna Norman protectively filed for Supplemental Security 18 Income (“SSI”) on behalf of M.K, a minor child, on January 15, 2008. (Tr. 18.) 19 Plaintiff alleged an onset date of January 12, 2000. (Tr. 108.) Benefits were 20 denied initially and on reconsideration. On December 5, 2008, Plaintiff timely ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 requested a hearing before an administrative law judge (“ALJ”). (Tr. 78-80.) A 2 hearing was held before ALJ Moira Ausems on August 5, 2010. (Tr. 51.) Plaintiff 3 was represented by counsel Chat Hatfield. (Tr. 18.) Testimony was taken from 4 Kent Layton, M.D., a medical expert, and Shawna Norman, the Plaintiff and 5 mother of the claimant. (Tr. 18, 38-39.) On October 22, 2010, ALJ Ausems issued 6 a decision finding the Plaintiff not disabled. (Tr. 18-33.) The Appeals Council 7 denied review. (Tr. 1-3.) This matter is properly before this Court under 42 8 U.S.C. § 405(g). 9 STATEMENT OF THE CASE 10 The facts of this case are set forth in the administrative hearing transcripts 11 and record and will only be summarized here. The claimant was eight years old 12 when his mother applied for benefits and was ten years old when ALJ Ausems 13 issued her decision. The claimant currently is a student who lives with his mother 14 and mother’s boyfriend. The Plaintiff alleges that the claimant suffers from 15 attention deficit hyperactivity disorder (“ADHD”), insomnia, anxiety, depression, 16 and myriad physical restrictions, including difficulties gaining weight and slow 17 growth. The Plaintiff argues that these mental and physical limitations are 18 functionally equivalent to the listings. 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 2 STANDARD OF REVIEW Congress has provided a limited scope of judicial review of a 3 Commissioner’s decision. 42 U.S.C. § 405(g). A court must uphold the 4 Commissioner’s decision, made through an ALJ, when the determination is not 5 based on legal error and is supported by substantial evidence. See Jones v. 6 Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The 7 [Commissioner’s] determination that a claimant is not disabled will be upheld if 8 the findings of fact are supported by substantial evidence.” Delgado v. Heckler, 9 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial 10 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 11 1119 n.10 (9th Cir. 1975), but less than a preponderance. McCallister v. Sullivan, 12 888 F.2d 599, 601-02 (9th Cir. 1989) (citing Desrosiers v. Secretary of Health and 13 Human Services, 846 F.2d 573, 576 (9th Cir. 1988)). Substantial evidence “means 14 such evidence as a reasonable mind might accept as adequate to support a 15 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). 16 “[S]uch inferences and conclusions as the [Commissioner] may reasonably draw 17 from the evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 18 (9th Cir. 1965). On review, the court considers the record as a whole, not just the 19 evidence supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 2 1980)). 3 It is the role of the trier of fact, not this court, to resolve conflicts in 4 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 5 rational interpretation, the court may not substitute its judgment for that of the 6 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 7 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 8 still be set aside if the proper legal standards were not applied in weighing the 9 evidence and making a decision. Brawner v. Sec’y of Health and Human Services, 10 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial evidence to support 11 the administrative findings, or if there is conflicting evidence that will support a 12 finding of either disability or nondisability, the finding of the Commissioner is 13 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 14 15 SEQUENTIAL PROCESS On August 22, 1996, Congress passed the Personal Responsibility and Work 16 Opportunity Reconciliation Act of 1996, Pub. L. 104-193, 110 Stat. 105, which 17 amended 42 U.S.C. § 1382c(a)(3). Under this law, a child under the age of 18 eighteen is considered disabled for the purposes of SSI benefits if “that individual 19 has a medically determinable physical or mental impairment, which results in 20 marked and severe functional limitations, and which can be expected to result in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 death or which has lasted or can be expected to last for a continuous period of not 2 less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). 3 The regulations provide a three-step process in determining whether a child 4 is disabled. First, the ALJ must determine whether the child is engaged in 5 substantial gainful activity. 20 C.F.R. § 416.924(b). If the child is not engaged in 6 substantial gainful activity, then the analysis proceeds to step two. Step two 7 requires the ALJ to determine whether the child's impairment or combination of 8 impairments is severe. 20 C.F.R. § 416.924(c). The child will not be found to 9 have a severe impairment if it constitutes a “slight abnormality or combination of 10 slight abnormalities that causes no more than minimal functional limitations.” Id. 11 If, however, there is a finding of severe impairment, the analysis proceeds to the 12 final step which requires the ALJ to determine whether the impairment or 13 combination of impairments “meet, medically equal, or functionally equal” the 14 severity of a set of criteria for an impairment in the listings. 20 C.F.R. 15 § 416.924(d). 16 The regulations provide that an impairment will be found to be functionally 17 equivalent to a listed impairment if it results in extreme limitations in one area of 18 functioning or marked limitations in two areas. 20 C.F.R. § 416.926a(a). To 19 determine functional equivalence, the following six domains, or broad areas 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 of functioning, are utilized: acquiring and using information, attending and 2 completing tasks, interacting and relating with others, moving about and 3 manipulating objects, caring for yourself, and health and physical well-being. 20 4 C.F.R. § 416.926a. 5 ALJ’S FINDINGS 6 ALJ Ausems found that M.K was born on January 12, 2000, and was a 7 school-age child on the application date of January 15, 2008, and the decision date 8 of October 22, 2010. (Tr. 21.) At step one of the three-step sequential evaluation 9 process, the ALJ found M.K. has not engaged in substantial gainful activity since 10 January 15, 2008, the application date. (Tr. 21.) At step two, the ALJ found that 11 M.K. had the severe impairment of ADHD with insomnia. (Tr. 21.) At step three, 12 the ALJ found that the M.K.’s impairment did not meet or medically equal any of 13 the impairments listed in Part 404, Subpart P, Appendix 1 of 20 C.F.R. (Tr. 22.) 14 The ALJ further found that M.K.’s impairment did not functionally equal the 15 listings. (Tr. 22.) Accordingly, the ALJ concluded that M.K. was not disabled for 16 purposes of the Social Security Act. (Tr. 32.) 17 ISSUES 18 The question before the Court is whether the ALJ’s decision is supported by 19 substantial evidence and free of legal error. Specifically, the Plaintiff argues that 20 the ALJ erred by improperly rejecting the opinions of M.K’s reviewing doctors and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 rejecting the testimony of M.K.’s mother, Ms. Norman. Ms. Norman further 2 argues that the ALJ erred by finding that M.K.’s impairments did not functionally 3 equal any listing. 4 5 DISCUSSION Where a child's impairment does not meet or equal one of the Listings, his 6 impairments are evaluated under a functional equivalency standard. 20 C.F.R. 7 § 416.926a. To be functionally equivalent, an impairment must “result in ‘marked’ 8 limitations in two domains of functioning or an ‘extreme’ limitation in one 9 domain.” 20 C.F.R. § 416.926a(a). The domains of functioning are: (1) acquiring 10 and using information; (2) attending and completing tasks; (3) interacting and 11 relating to others; (4) moving about and manipulating objects; (5) caring for 12 oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). 13 A limitation is marked where an impairment “interferes seriously with your 14 ability to independently initiate, sustain, or complete activities.” 20 C.F.R. 15 § 416.926a(e)(2)(i). Marked limitations are “‘more than moderate’ but ‘less than 16 extreme.’” Id. § 416.926a(e)(2)(i). A limitation is extreme where an impairment 17 “interferes very seriously with your ability to independently initiate, sustain, or 18 complete activities.” Id. § 416.926(e)(3)(i). 19 20 The ALJ is responsible for deciding functional equivalence after consideration of all evidence submitted. 20 C.F.R. § 416.926a(n). The Regulations ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 list the information and factors that will be considered in determining whether a 2 child's impairment functionally equals a Listing. 20 C.F.R. § 416.926a; 20 C.F.R. 3 § 416.924a, .924b. In making this determination, the Commissioner considers test 4 scores together with reports and observations of school personnel and others. 20 5 C.F.R. § 416.924a(a); 20 C.F.R. § 416.926a(e)(4)(ii). The ALJ also considers how 6 much extra help the child needs, how independent he is, how he functions in 7 school, and the effects of treatment, if any. 20 C.F.R. § 416.926a(b). In evaluating 8 this type of information, the ALJ will consider how the child performs activities as 9 compared to other children his age who do not have impairments. 20 C.F.R. 10 § 416.926a(b). This information comes from examining and non-examining 11 medical sources as well as “other sources,” such as parents, teachers, case 12 managers, therapists, and other non-medical sources who have regular contact with 13 the child. See, e.g., 20 C.F.R. § 416.913(c)(3), (d); Social Security Ruling (SSR) 14 98–1p, IV.B. (Sources of Evidence). 15 The Plaintiff argues that the ALJ erred by failing to find that M.K. suffered 16 marked limitations in at least two of three areas: (1) acquiring and using 17 information; (2) attending and completing tasks; and (3) health and physical well- 18 being. The claimant further argues that in failing to find marked limitations in at 19 least two of these three areas, the ALJ failed to appropriately weigh medical and 20 lay evidence. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 Acquiring and Using Information Limitations affecting a child’s ability to acquire and use information are 2 3 comprised of limitations to the acquisition of knowledge and limitations to the use 4 of that knowledge. 20 C.F.R. § 416.926a(g)(1)(i)-(ii); SSR 09-3p. A typically 5 functioning school-age child is expected to (1) learn to read, write and do simple 6 arithmetic; (2) become interested in new subjects and activities; (3) demonstrate 7 learning by producing oral and written projects, solving arithmetic problems, 8 taking tests, doing group work, and entering into class discussions; (4) apply 9 learning in daily activities; and (5) use increasingly complex language. SSR 09- 10 11 3p. As an initial matter, the Plaintiff argues that the ALJ failed to give 12 appropriate weight to the testimony of the M.K.’s mother, Ms. Norman. As a 13 parent, Ms. Norman is a lay witness who is considered an “other source” for 14 purposes of the social security regulations. 20 C.F.R. § 416.913(d)(4). Such 15 “other source” testimony may be rejected if the ALJ gives reasons germane to each 16 witness. Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 17 2006). 18 Ms. Norman testified that M.K. needs constant attention to ensure that he 19 does not become distracted. (Tr. 53-54.) Ms. Norman described how M.K. would 20 attempt to do “10 or 20 things at a time” and become frustrated when he could not. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 (Tr. 55.) According to Ms. Norman, she receives one to two phone calls a week 2 from M.K.’s school describing disruptive behavior and fights. (Tr. 56.) 3 ALJ Ausems gave Ms. Norman’s testimony “some weight,” (Tr. 24), but 4 found that her testimony often stood in contrast to the medical record. The ALJ 5 noted that, while M.K. suffered from ADHD, medication had been effective in 6 controlling M.K.’s symptoms. (Tr. 24-25.) The medical records of M.K.’s treating 7 physician, Melissa Lemp, D.O., bear this out. Dr. Lemp began seeing M.K. when 8 he was five years old, (Tr. 375), and ADHD was first raised as a concern when 9 M.K. was six, (Tr. 257.) While Dr. Lemp has changed dosages and medications 10 over time due to some ineffectiveness, E.g. (Tr. 263, 282, 283-85, 291, 359), the 11 responses by M.K. have been overall good. (Tr. 290, 341, 361-62, 368, 370.) 12 Importantly, Dr. Lemp concluded after her years of treating M.K. that M.K.’s 13 prognosis for his ADHD was “excellent,” that M.K. only suffered “less than 14 marked” limitations, that Dr. Lemp didn’t see ADHD as a disability, and that M.K. 15 was “very healthy boy.” 16 Furthermore, M.K.’s first- and second-grade teachers’ comments stand in 17 contrast to Ms. Norman’s testimony. M.K.’s first-grade teacher noted no problems 18 in any of the six domains. (Tr. 132-39.) In fact, she described M.K. as improving 19 in every academic area. (Tr. 139.) M.K.’s second-grade teacher similarly found 20 him to have no issues and specifically expressed surprise that M.K. suffered from ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 alleged anger issues. (Tr. 218-225.) The two teachers who answered 2 questionnaires taught M.K. for a portion of the period in which he received 3 treatment from Dr. Lemp. (Tr. 132, 218.) In light of the contrasting medical 4 evidence and statements by M.K.’s teachers, the Court finds ALJ Ausems provided 5 germane reasons to support the weight he gave Ms. Norman’s testimony. 6 In support of her conclusion that M.K. was only markedly limited in his 7 ability to acquire and use information, ALJ Ausems gave controlling weight to the 8 opinion of Dr. Lemp. (Tr. 26.) Dr. Lemp found that M.K. had a less than marked 9 limitation in acquiring and using information. (Tr. 373.) Treating physicians, such 10 as Dr. Lemp, are generally entitled to great weight, and “where the treating 11 doctor’s opinion is not contradicted by another doctor, it may be rejected only for 12 ‘clear and convincing’ reasons.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 13 1995) (citing Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Here, Dr. 14 Lemp’s determination was echoed by Dr. Layton at the hearing. (Tr. 49-51.) 15 Additionally, Dr. Lemp’s conclusion is substantially consistent the two childhood 16 disability determinations in the record, which are less favorable to a finding of 17 disability. (Tr. 335, 345). Given the consistency of the medical evidence, there is 18 ample evidence in the record to support ALJ Ausems’ conclusion. 19 To challenge the ALJ’s conclusion, the Plaintiff submitted a record to the 20 appeals council after the ALJ issued her October 22, 2010, decision. (Tr. 246.) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Where evidence is presented for the first time before the appeals council, this 2 Court should consider it when determining whether the ALJ’s opinion is supported 3 by substantial evidence. Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 4 1163 (9th Cir. 2012). The new record is comprised of a teacher questionnaire 5 dated December 12, 2010, and an undated letter, both of which come from M.K.’s 6 fifth-grade teacher, Monne Bellrock. (Tr. 247-51.) In the questionnaire, Ms. 7 Bellrock asserts that M.K. suffers a marked limitation in his ability to acquire and 8 use information. (Tr. 247.) In her letter, Ms. Bellrock asserts that M.K. has 9 exhibited various limitations in class, including difficulty following instructions, 10 11 difficulty paying attention, forgetfulness, and excessive talking. (Tr. 251.) Considering Ms. Bellrock’s opinion in light of all of the evidence in the 12 record, the Court finds that the ALJ’s conclusion that M.K. had a less than marked 13 limitation in acquiring and using information was supported by substantial 14 evidence and free of legal error. Reports procured after an adverse ALJ 15 determination are less persuasive than reports procured prior to such a 16 determination. Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (citing Weetman 17 v. Sullivan, 877 F.2d 20, 23 (9th Cir. 1989)). Additionally, Ms. Bellrock’s opinion 18 stands against the consistent weight of the evidence, including the opinion of 19 M.K.’s treating physician, Dr. Lemp. In order to overcome that uncontested 20 opinion, the Plaintiff would need to provide clear and convincing reasons. Lester, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 81 F.3d at 830. Similarly, the testimony of Dr. Layton and the two childhood 2 disability determinations stand in contrast to Ms. Bellrock’s determination. (Tr. 3 49-51, 335, 345.) Accordingly, even taking into account Ms. Bellrock’s opinion, 4 the ALJ’s decision was supported by substantial evidence. Therefore, the ALJ did 5 not err in finding that M.K. had only a less than marked limitation in acquiring and 6 using information. 7 Attending and Completing Tasks 8 The domain of “attending and completing tasks” is concerned with a child’s 9 ability to focus and maintain attention and ability to see tasks to completion. SSR 10 09-4p. A typically functioning school-age child is expected to (1) focus attention 11 in a variety of situations; (2) concentrate on details and avoid careless mistakes; (3) 12 change activities without distracting others; (4) sustain attention sufficiently to 13 participate in group sports, read alone, or complete family chores; and (5) complete 14 a transition task without extra reminders or supervision. SSR 09-4p. 15 As with the domain of acquiring and using knowledge, the ALJ’s opinion 16 relied heavily on the opinion of treating physician Dr. Lemp, who opined that 17 M.K.’s was less then markedly limited in attending and completing tasks. (Tr. 18 373.) Similarly, both Dr. Layton and the two childhood disability determinations 19 found that M.K. was less than markedly limited in this domain. (Tr. 50-51, 268, 20 335.) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 The Plaintiff argues that the ALJ’s decision is in error because M.K.’s 2 medication is no longer controlling his ADHD. ECF No. 20 at 19. However, the 3 most recent treatment records cited to by the Plaintiff establish that Concerta was 4 working in March 2010, (Tr. 361), and only duration and dosage were at issue as 5 late as May 2010, (Tr. 359.) The treating physician for both visits was Dr. Lemp, 6 and Dr. Lemp’s opinion as to M.K.’s functional limitations was issued after these 7 visits. (Tr. 359, 361, 373.) The ALJ’s decision accurately reflects the information 8 in these 2010 treatment records. (Tr. 26.) 9 The Plaintiff further argues that Ms. Bellrock’s opinion contradicts the 10 ALJ’s conclusion. While it is true that Dr. Lemp’s opinion notes that M.K.’s 11 teacher may know more about any limitation in the domain of attending and 12 completing tasks, (Tr. 373), Ms. Bellrock provides the only opinion that supports a 13 marked limitation in this area. Her opinion stands in contrast not only to Dr. 14 Lemp’s but also to Dr. Layton’s and to the two childhood disability determinations 15 in the record. (Tr. 50-51, 279, 346.) Given the consensus of the medical record, 16 including the opinion of treating physician Dr. Lemp, the Court finds that Ms. 17 Bellrock’s opinion is insufficient to overcome the evidence of record. Therefore, 18 the Court finds that substantial evidence supports the ALJ’s decision that M.K. 19 suffers only a less than marked limitation in the domain of attending and 20 completing tasks. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 2 Health and Physical Well-being Even if the Court were to accept the Plaintiff’s argument with regard to 3 M.K.’s limitations related to health and physical well-being, the Court would find, 4 at best, a marked limitation in this area. ECF No. 20 at 19, 25 at 6-7. As the Court 5 has affirmed the ALJ’s finding of less than marked limitations in the domains of 6 acquiring and using knowledge and attending and completing tasks, at best it 7 would leave M.K. with one marked limitation in the six domains. Functional 8 equivalence requires marked limitations in two domains or an extreme limitation in 9 one domain. 20 C.F.R. § 416.926a(a). Accordingly, even if the Court were to 10 accept Plaintiff’s argument as to the domain of health and physical well-being, the 11 Court would still affirm the decision of the ALJ. Therefore, the Court finds that 12 the ALJ’s decision is supported by substantial evidence and free of legal error. 13 Accordingly, IT IS HEREBY ORDERED: 14 1. The claimant’s motion for summary judgment, ECF No. 20, is DENIED. 15 2. The Secretary’s motion for summary judgment, ECF No. 24, is 16 GRANTED. 17 3. JUDGMENT shall be entered for the Defendant. 18 IT IS SO ORDERED. 19 The District Court Executive is hereby directed to enter this Order, to 20 provide copies to counsel, and to close this file. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 DATED this 21st of October 2013. 2 3 4 s/ Fred Van Sickle Fred Van Sickle Senior United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16
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