Mendoza v. Commissioner of Social Security, No. 4:2016cv05151 - Document 24 (E.D. Wash. 2018)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 13 PLAINTIFF'S SUMMARY JUDGMENT MOTION AND DENYING 21 DEFENDANT'S SUMMARY JUDGMENT MOTION. Matter REMANDED to the agency for further proceedings consistent with this Order. Case is closed. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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Mendoza v. Commissioner of Social Security Doc. 24 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 23, 2018 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 SUNSHINE MENDOZA, o/b/o J.J.M., a minor child, No. 4:16-CV-05151-EFS 8 Plaintiff, 9 v. 10 COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S SUMMARY JUDGMENT MOTION AND DENYING DEFENDANT’S SUMMARY JUDGMENT MOTION 11 Defendant. CLERK’S OFFICE ACTION REQUIRED 12 13 14 Before the Court are the parties’ cross motions for summary 15 judgment, ECF Nos. 13 & 22. 16 benefits by the Administrative Law Judge (ALJ).1 The Commissioner of 17 Social Security (Commissioner) asks the Court to affirm the ALJ’s 18 decision finding Plaintiff not disabled. ECF No. 22. Plaintiff J.J.M. appeals a denial of 19 After reviewing the record and relevant authority, the Court is 20 fully informed. For the reasons set forth below, the Court grants in 21 part and denies in part Plaintiff’s Motion for Summary Judgment, denies 22 Defendant’s Motion for Summary Judgment, and remands this case to the 23 ALJ for additional proceedings. 24 / 25 26 1 Sunshine Mendoza is seeking benefits on behalf of her minor child, J.J.M. this Order, the Court refers to J.J.M. as “Plaintiff.” In ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com I. 1 PROCEDURAL HISTORY2 Plaintiff was born on November 3, 2008. Administrative Record (AR) 2 3 177. On March 29, 2012, Plaintiff’s mother protectively filed an 4 application for supplemental security income on Plaintiff’s behalf, 5 alleging that he was disabled due to being born without a left ear and 6 having speech problems, with an onset date of November 3, 2008. AR 177, 7 183. The application was denied initially and upon reconsideration, and 8 Plaintiff requested a hearing. AR 105, 111, 116. 9 After a hearing before Administrative Law Judge (ALJ) Moira Ausems 10 on October 20, 2014, the ALJ published a decision denying Plaintiff’s 11 disability claim. AR 42, 48. On September 16, 2016, the Appeals Council 12 denied Plaintiff’s request for review, rendering the ALJ’s decision as 13 final agency action for the purposes of judicial review. AR 1. On 14 November 17, 2016, Plaintiff filed this lawsuit, appealing the ALJ’s 15 decision. ECF No. 1. The parties subsequently filed the instant summary 16 judgment motions. ECF Nos. 13 & 21. II. 17 THREE-STEP PROCESS FOR CHILD DISABILITY 18 A child under the age of 18 is disabled within the meaning of the 19 Social Security Act “if that individual has a medically determinable 20 physical or mental impairment, which results in marked and severe 21 functional limitations, and which can be expected to result in death 22 or which has lasted or can be expected to last for a continuous period 23 of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i); see also 24 20 C.F.R. § 416.906. The regulations provide a three-step process to 25 2 26 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, the parties’ briefs, and the underlying records. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 2 1 determine whether a claimant satisfies this criteria. 20 C.F.R. § 2 416.924(a). First, the ALJ must determine whether the child is engaged 3 in substantial gainful activity. 20 C.F.R. § 416.924(b). Second, the 4 ALJ 5 impairment that is severe,” which is defined as an impairment that 6 causes 7 416.924(c). Third, if the ALJ finds a severe impairment, the ALJ must 8 then consider whether the impairment either “medically equals” or 9 “functionally equals” a listed disability. 20 C.F.R. § 416.924(c), (d). 10 At the third step, if the ALJ finds that the child’s impairment 11 or combination of impairments does not meet or medically equal a 12 listing, 13 combination of impairments functionally equals a listing. 20 C.F.R. 14 § 416.926a(a). The ALJ’s functional equivalence assessment requires the 15 ALJ to evaluate the child’s functioning in six “domains.” These six 16 domains are designed “to capture all of what a child can or cannot do,” 17 and are as follows: considers “more the whether than ALJ the minimal must child has functional still a “medically limitations.” determine whether 18 (1) Acquiring and using information; 19 (2) Attending and completing tasks; 20 (3) Interacting and relating with others; 21 (4) Moving about and manipulating objects; 22 (5) Caring for self; and 23 (6) Health and physical well-being. 24 the determinable 20 C.F.R. impairment § or 20 C.F.R. § 416.926a(b)(1)(i)–(vi). 25 A child’s impairment will be deemed to functionally equal a listed 26 impairment if his condition results in “marked” limitations in at least ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 3 1 two domains, or an “extreme” limitation in at least one domain. 20 2 C.F.R. § 416.926a(a). A “marked limitation” is present in a domain if 3 the child’s impairment “interferes seriously with [his] ability to 4 independently initiate, sustain, or complete activities.” 20 C.F.R. § 5 416.926a(e)(2)(i). By contrast, an “extreme limitation” is defined as 6 a limitation that “interferes very seriously with [his] ability to 7 independently initiate, sustain, or complete activities.” 20 C.F.R. § 8 416.926a(e)(3)(i). III. ALJ’S DECISION 9 10 At the first step in this case, the ALJ determined that Plaintiff 11 has not engaged in substantial gainful activity since applying for 12 disability. AR 26. At the second step, the ALJ found that Plaintiff 13 “has the following severe impairments: left ear conductive hearing 14 loss; congenital absence of left ear due to grade 3 microtia with 15 complete canal atresia; and speech and language delays.” AR 26. And, 16 at the third step, the ALJ found that Plaintiff “does not have an 17 impairment or combination of impairments that meets or medically equals 18 the severity of one of the listed impairments,” not did any impairments 19 “functionally equal” the severity of a listed impairment. AR 27–28. 20 Accordingly, the ALJ found that Plaintiff was not disabled for the 21 purposes of the Social Security Act. AR 42. 22 While considering 23 considered 24 evidence, medical opinions of evaluating and treating physicians, and 25 the testimony of Sunshine Mendoza, Plaintiff’s mother. See AR 29. The 26 ALJ found that although Plaintiff suffered from medically determinable evidence in Plaintiff’s disability claim, the including objective record, the ALJ medical ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 4 1 impairments that could reasonably be expected to produce the alleged 2 symptoms, 3 persistence and limiting effects of these symptoms are not entirely 4 credible . . . .” AR 29. The ALJ also gave “little weight” to the 5 opinion 6 otologist, because he “did not give more than a cursory explanation 7 for a couple of findings and omitted explanations of others.” AR 33. of Ms. Dr. Mendoza’s Michael “statements Olds, concerning Plaintiff’s treating the intensity, physician and 8 However, the ALJ gave “substantial weight,” to the opinions of 9 Social Security Administration (SSA) reviewing physicians because their 10 “findings are consistent with subsequent medical records and non- 11 medical evidence.” AR 28, 30–32. The ALJ came to a similar conclusion 12 as the SSA evaluators for the six functional-equivalence domains, 13 finding that Plaintiff has (1) 14 acquiring and using information; (2) a less than marked limitation in 15 attending and completing tasks; (3) a marked limitation in interacting 16 and relating with others; (4) no limitation in moving about 17 manipulating objects; (5) a less than marked limitation in caring for 18 self; and (6) a less than marked limitation in health and physical 19 well-being. AR 34–42. IV. 20 a less than marked limitation in and STANDARD OF REVIEW 21 This Court will reverse an ALJ’s decision only if it was not 22 supported by substantial evidence in the record as a whole or if the 23 ALJ applied the wrong legal standard. Molina v. Astrue, 674 F.3d 1104, 24 1110 25 scintilla but less than a preponderance; it is such relevant evidence 26 as a reasonable mind might accept as adequate to support a conclusion.” (9th Cir. 2012). Substantial evidence is “more than a ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 5 mere 1 Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe 2 v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 3 It is the role of the ALJ, not this Court, to weigh conflicting 4 evidence and make credibility assessments. If the evidence supports more 5 than one rational interpretation, the Court may not substitute its 6 judgment for that of the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 7 Cir. 1999). The Court will also uphold “such inferences and conclusions 8 as the [ALJ] may reasonably draw from the evidence.” Mark v. Celebrezze, 9 348 F.2d 289, 293 (9th Cir. 1965). However, if the ALJ applied an 10 incorrect legal standard in weighing the evidence and arriving at his 11 decision, the Court will reverse unless the error was harmless. See 12 Molina, 674 F.3d at 1111. V. 13 Plaintiff 14 seeks judicial ANALYSIS review of the Commissioner’s final 15 decision denying him benefits. He contends that the ALJ reversibly 16 erred by (A) failing to obtain an appropriate specialist assessment; 17 (B) improperly weighing the evidence; and (C) improperly assessing the 18 functional equivalence domains. See ECF No. 11. 19 A. Case review by a qualified specialist 20 Section 1382c(a)(3)(I) of the Social Security Act provides: 21 In making any determination under this title . . . with respect to the disability of an individual who has not attained the age of 18 years . . . the Commissioner of Social Security shall make reasonable efforts to ensure that a qualified pediatrician or other individual who specializes in a field of medicine appropriate to the disability of the individual (as determined by the Commissioner of Social Security) evaluates the case of such individual. 22 23 24 25 42 U.S.C. § 1382c(a)(3)(I). 26 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 6 1 The Court of Appeals for the Ninth Circuit has interpreted this 2 provision to mean that “the ALJ is required to make a reasonable effort 3 to obtain a case evaluation, based on the record in its entirety, from 4 a pediatrician or other appropriate specialist, rather than simply 5 constructing his own case evaluation from the evidence in the record.” 6 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1014 (9th Cir. 2003). 7 After the Ninth Circuit decided Howard ex Rel. Wolff, the Social 8 Security Administration issued Social Security Acquiescence Ruling 04- 9 01(9) in response, which included the following: 15 To satisfy this requirement, the ALJ or AAJ may rely on [a] case evaluation made by a State agency medical or psychological consultant that is already in the record, or the ALJ or AAJ may rely on the testimony of a medical expert. When the ALJ relies on the case evaluation made by a State agency medical or psychological consultant, the record must include the evidence of the qualifications of the State agency medical or psychological consultant. In any case, the ALJ or AAJ must ensure that the decision explains how the State agency medical or psychological consultant’s evaluation was considered. 16 AR 04-1(9) at *3, 2004 WL 5846720, 69 FR 22578-03 (S.S.A. Apr. 26, 2004) 17 (emphasis added). 10 11 12 13 14 Here, the hearing testimony of psychiatrist Joseph Cools, Ph.D., 18 19 does not constitute 20 “specializes in the field of medicine appropriate to the disability of 21 the 22 expressed that he was unable to render an opinion as to most of the 23 record because it was “outside of [his] area of expertise.” AR 59. He 24 commented that he looked “at the record the same as [the ALJ] and 25 counsel” because he did not “have the expertise to really tease out the 26 grave impairments” and that “it’s really not my area.” AR 60–61. While individual.” 42 a case U.S.C. evaluation from § 1382c(a)(3)(I). an Dr. individual Cools who repeatedly ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 7 1 Dr. Cools noted that the record did not indicate Plaintiff had a severe 2 psychological 3 pediatrician or a speech pathologist to say whether or not” Plaintiff 4 had any marked limitations in functional-equivalence domains 1 and 2. 5 AR 60–61. Even the ALJ commented at the hearing that she was covering 6 a docket for another ALJ, and that she was “not really sure” why a 7 clinical psychologist was called as an expert witness. She suggested 8 that she might conduct interrogatories with an audiologist or other 9 specialist after the hearing but never did so. AR 62. pathology, he said that “it would really take a 10 Instead, the ALJ relied on three case evaluations from Social 11 Security Administration evaluators: Dr. Christy Ulleland, who prepared 12 a report on June 26, 2012, see AR 90; Dr. Nevine Makari, who prepared 13 a report on January 28, 2013, see AR 101; and Dr. William Lysak, who 14 prepared a report for Plaintiff’s previous disability claim on May 10, 15 2010, see AR 268. AR 28, 30–32. Each report includes a notation of 16 “M.D.” or “Ph.D.” next to the evaluator’s name, but no other evidence 17 of their qualifications exists in the record. The fact that these 18 doctors were Social Security evaluators strongly suggests that each was 19 fully qualified to conduct a case review. Nevertheless, the record 20 contains no actual evidence of the doctors’ qualifications as required 21 by AR 04-1(9). 22 Accordingly, the Court remands this matter for the ALJ to properly 23 include such qualifications in the record or, preferably, to obtain a 24 new case evaluation by an appropriate medical specialist. See 42 U.S.C. 25 § 1382c(a)(3)(I); AR 04-1(9) at 3. 26 / ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 8 1 B. ALJ’s weighing of the evidence and assessment of the functional- 2 equivalence domains 3 Because the Court is remanding this matter to the ALJ for further 4 proceedings, it declines to address Plaintiff’s arguments regarding the 5 ALJ’s weighing of the medical evidence and the testimony of Plaintiff’s 6 mother. Similarly, the Court declines to address the ALJ’s evaluations 7 of the six functional-equivalence domains. The Court encourages the ALJ 8 to re-evaluate the medical evidence, Ms. Mendoza’s testimony, and the 9 domains in light of any developments on remand.3 10 C. Remand vs. award of benefits 11 Plaintiff urges the Court to reverse for an immediate award of 12 benefits. The decision whether to remand for further proceedings or 13 reverse and award benefits is within the discretion of the Court. See 14 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). An immediate 15 award of benefits is appropriate where “no useful purpose would be 16 served by further administrative proceedings, or where the record has 17 been thoroughly developed,” Varney v. Sec’y of Health & Human Servs., 18 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by remand 19 would be “unduly burdensome.” Terry v. Sullivan, 903 F.2d 1273, 1280 20 21 3 22 23 24 25 26 The record also contains evidence suggesting that Plaintiff’s limitations had significantly improved by October 2014, which the ALJ used to justify a finding of no disability. AR 28. Even if Plaintiff’s condition has improved to the point where he is not presently disabled, the ALJ’s opinion did not address the possibility that he was disabled – and thus eligible for benefits - in the past. Plaintiff may still be entitled to benefits for a past “closed period” of disability, provided he was disabled for at least twelve months. See generally Attmore v. Colvin, 827 F.3d 872 (9th Cir. 2016); 42 U.S.C. § 1382c(a)(3)(C)(i) (a minor is disabled if he experiences a “physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months”). ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 9 1 (9th Cir. 1990). This policy is based on the “need to expedite disability 2 claims.” Varney, 859 F.2d at 1401. But where there are outstanding 3 issues that must be resolved before a determination can be made, and it 4 is not clear from the record that the ALJ would be required to find a 5 claimant disabled if all the evidence were properly evaluated, remand 6 is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595–96 (9th Cir. 7 2004). 8 Here, the Court is remanding for additional proceedings due to the 9 ALJ’s failure to obtain an evaluation from a relevant specialist or 10 comply with AR 04-1(9). That being the case, it cannot be said that “no 11 useful purpose would be served by future administrative proceedings.” 12 Varney, 859 F.2d at 1399. Accordingly, the Court declines to remand for 13 the immediate award of benefits. VI. 14 CONCLUSION 15 For the reasons discussed above, the Court reverses the decision 16 of the ALJ and remands for further proceedings. On remand, the ALJ 17 should “obtain a case evaluation, based on the record in its entirety, 18 from a pediatrician or other appropriate specialist.” Howard, 341 F.3d 19 at 1014; see also 42 U.S.C. 1382c(a)(3)(I). If the ALJ relies on the 20 opinions of any Social Security Administration evaluators, she shall 21 ensure that the record contains each evaluator’s qualifications and 22 explain how each evaluation was considered.4 See AR 04-1(9). 23 / 24 4 25 26 Arguably, the ALJ could satisfy this requirement by simply adding the qualifications of the SSA evaluators to the record. The Court notes, however, that the latest evaluation — performed by Dr. Makari on January 28, 2013, see AR 101 — is now five years old. The Court therefore encourages the ALJ to obtain a new case evaluation from a qualified specialist. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 10 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is 3 GRANTED IN PART AND DENIED IN PART; this matter is REMANDED 4 to the agency for further proceedings consistent with this 5 Order. 6 2. is DENIED. 7 8 The Commissioner’s Motion for Summary Judgment, ECF No. 21, 3. The Clerk’s Office is to enter JUDGMENT in favor of Plaintiff. 9 10 4. The case shall be CLOSED. 11 IT IS SO ORDERED. The Clerk’s Office is directed to file this 12 Order, enter Judgment for the Plaintiff, provide copies to all counsel, 13 and close the file. 14 DATED this __23rd day of March 2018. 15 16 __ s/Edward F. Shea_____ EDWARD F. SHEA Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2016\16-CV-5151;Mendoza.SJ.lc02.docx ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 11
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