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Kapor v. Commissioner of the Social Security Administration


November 16, 2005


The opinion of the court was delivered by: Marilyn Hall Patel District Judge United States District Court Northern District of California


Re: Cross Motions for Summary Judgment

On December 28, 2004 claimant Natasha Kapor brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying her claim for "Childhood Disability Benefits." Now before the court are the parties' cross-motions for summary judgment. Having considered the arguments presented and for the reasons stated below, the court enters the following memorandum and order.


Claimant is a twenty-nine-year-old woman with an eleventh grade education and no vocationally relevant past work experience. Tr. 247--48. At the present time claimant lives with her family and relies on public transit or family members for transportation. Id. at 248.

I. Psychiatric History Before the Age of Twenty-Two

In her Disability Report, claimant alleges that she became disabled on January 1, 1983 due to psychological problems. Id. at 60. At the age of twelve or thirteen, the problems became more apparent as claimant began to experience panic attacks where she would become shaky and nervous. Id. at 251. Although claimant's performance in school is described as average, her high school teachers recommended that she enroll in the honors curriculum. Tr. 251--52. The panic attacks and nervousness, however, caused claimant to miss class to such an extent that a truancy officer was eventually sent to the family residence. Id. at 252. By the time claimant was seventeen she had stopped attending school altogether. Id. According to claimant, the social setting of the school impaired her concentration and she felt uncomfortable being around people. Id. at 253.

Claimant first began to receive counseling at age six, and this continued intermittently until age seventeen. Id. at 156--96. The progress reports for the period indicate that claimant's mother reported that claimant would get confused, was not doing well in school, would not listen to her, and had problems concentrating. The reports also indicate that claimant fought regularly with her brother and father. 156. In addition, plaintiff was negatively affected by recurring difficulties in her parents marriage. Id. at 159, 168, 178, 196. Despite these difficulties, the counselor regularly noted that claimant was an intelligent and talented child. Id. at 156, 158, 159.

On October 26, 1993, at the age of seventeen, claimant was evaluated by Dr. Bobrow, a therapist from Kaiser Permanente, and a psychiatric evaluation form was completed. Id. at 153--55. The mental status examination noted that claimant was attractive, articulate, slightly dysthymic and anxious. Id. at 155. Claimant identified school as the major cause of her worries, anxieties and sense of pressure. The initial diagnostic impression of the therapist was dysthymia. Although, the treatment plan called for further evaluation of claimant, claimant allegedly stopped the followup treatment when Dr. Bobrow refused to write a note for her recommending home study. Id. at 149. Claimant asserts that she stopped attending because she was uncomfortable with Dr. Bobrow as a therapist and found his attitude towards her inconsiderate and inappropriate. Id. at 236.

II. Psychiatric History After the Age of Twenty-Two

Following this examination by Dr. Bobrow, there are no medical treatment records from September 1994 to July 2002. On July 17, 2002, a psychiatric diagnostic intake evaluation was completed at Kaiser Hospital. Id. at 133. Claimant, who was twenty six at the time, reported increased anxiety and isolation along with panic symptoms. Id. at 134. The diagnosis was social phobia and claimant was referred to Dr. Elke Zuercher-White for an anxiety evaluation. Id.

The anxiety evaluation was conducted on July 24, 2002. Tr. 129. During this evaluation, claimant complained of a nervous stomach, dizziness, and a rapid heart beat whenever she was in social situations or in anticipation of them. Id. The social situations she described included: meeting new people, crowds, parties, crowded public restrooms, eating or drinking with unfamiliar people, and public places in general. Id. at 130. Claimant also reported washing her hands every 15--20 minutes and showering for half an hour every day. Id. at 131. Dr. Zuercher-White diagnosed claimant with social phobia and a mild form of obsessive-compulsive disorder. Id. at 132. The doctor noted that the extent of her social phobia did not appear to fully explain her extremely poor ability to function and that it appeared that a lack of parental expectations was the likely cause. Id.

On January 10, 2003, at the age of twenty seven, a psychological consultive evaluation was conducted by Dr. Jonathan Gonick-Hallows, Ph.D. Id. at 197. According to claimant, she had not seen a therapist since age seventeen because of bad experiences in her psychotherapy relationships and a resistance to group therapy. Id. Dr. Gonick-Hallows diagnosed claimant with mixed anxiety disorder with social phobia, panic attacks, obsessive-compulsive symptoms, and severe performance anxiety. Id. at 199. The doctor concluded that claimant was thoughtful and articulate, but somewhat fearful and avoidant. Id. at 200. Indeed, the prognosis provided by Dr. Gonick-Hallows was guarded, noting that there was a possibility for improvement if claimant was able to find a comfortable long-term pyschotherapeutic situation with an unusually experienced psychotherapist. In the absence of such treatment, the doctor predicted that claimant would continue to be compromised in her level of adjustment. Id.

On January 13, 2004, another psychological evaluation was conducted by Dr. Joanne C. Keaney. Id. at 242. The evaluation was scheduled in order to clarify the presence and severity of the client's mental illness prior to age twenty-two. Id. at 239. Dr. Keaney administered a number of tests, including a self-report personality test that assesses emotional and psychological difficulties. Based on the test data, the doctor concluded that the claimant was currently experiencing a severe mental disorder. The diagnosis was avoidant personality disorder with negativistic and self defeating traits.

The MCMI profile also suggested anxiety spectrum disorders and dysthymia. Id.

III. Procedural History

Claimant first filed for Childhood Disability Benefits on April 5, 1997 when she was twenty one years old, but the application was denied in the first instance and then again on reconsideration. Tr. 15. On June 5, 2002, claimant filed again for Childhood Disability Benefits. The claim was again denied initially and on reconsideration, and a request for a hearing was filed. Claimant appeared and testified before an Administrative Law Judge ("ALJ") on November 3, 2003. Id. On November 20, 2003, the ALJ found that claimant was not under a disability as defined by the Social Security Act because claimant's impairment did not significantly limit her ability to perform basic work-related activities. Id. at 19. Specifically, the ALJ concluded that the medical evidence established that claimant did not have an impairment before age twenty-two and that any limitations that existed were minimal and not related to a medically determinable physical or mental impairment. Id.

On January, 2004, claimant filed a request for review of the hearing decision because of the absence of a function-by-function assessment by the ALJ of claimant's ability to do work-related or school related physical and mental activities. Id. at 10. Claimant also argued that a medical expert should have been present at the hearing pursuant to Social Security Ruling 83-20. Id. In considering whether to grant the appeal, the Appeals Council reviewed Dr. Keaney's January 13, 2004 psychological report on the presence of mental illness prior to age twenty-two. Id. at 9. On October 28, 2004, the Appeals Council denied claimant's request for review, finding that there was no reason to review the ALJ's decision. Id. at 5. Consequently, the ALJ's November 20, 2003 decision is the final decision of the Commissioner of Social Security in this action. Id.


A district court may disturb the Commissioner's final decision on whether a person is disabled "only if [the decision] is based on legal error or if the fact findings are not supported by substantial evidence." Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir. 1987). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is "more than a mere scintilla but less than a preponderance." Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992). In evaluating the evidence, the court "must consider the record as a whole," including evidence that supports the Commissioner's decision and evidence that detracts from it." Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). Nonetheless, the ALJ is charged with resolving ambiguities in the evidence, and where evidence exists to support more than one rational interpretation, the court must defer to the ALJ's decision. Andrews v. Shalala, 53 F.3d 1035, 1039--40 (9th Cir. 1995). The ALJ's determinations of law, however, are reviewed de novo. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). Even if substantial evidence supports the ALJ's fact findings, his decision must be set aside if improper legal standards were applied in reaching that decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978).


Claimant seeks judicial review of the Commissioner's decision and moves for summary judgment on the following three issues: (1) whether the ALJ's findings on "severe" impairments were supported by substantial evidence; (2) whether the ALJ properly discounted claimant's credibility; and (3) whether the ALJ improperly ignored Social Security Ruling 83-20's requirement that the testimony of a medical advisor be obtained. Upon review of the record, this court finds that the ALJ's decision must be set aside due to the application of improper legal standards.

I. ALJ's Findings on Severe Impairment

Claimant asserts that the ALJ's findings on "severe" impairment were contrary to all the evidence and were not supported by substantial evidence. In order to establish a claimant's eligibility for disability benefits under the Social Security Act, it must be shown that: (a) the claimant suffers from a "medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months"; and (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other "substantial gainful work which exists in the national economy." 42 U.S.C. § 423 (d)(2)(A). If the claimant meets both of these criteria, then he or she is "disabled." Id.

Federal regulations promulgated by the Commissioner set forth a five step sequential analysis to be used by an ALJ in determining whether a claimant is disabled. See 20 C.F.R. 404.1520(a)(4). At each step a finding of disability or non-disability can be made, thus ending the inquiry. First, the ALJ must consider the claimant's "work activity, if any." Id. If the claimant is engaged in "substantial gainful activity," then the claimant is not disabled and the claim is denied. 20 C.F.R. 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful activity, then Step Two requires the ALJ to determine whether the claimant has a medically severe impairment or combination of impairments.*fn1 20 C.F.R. 404.1520(a)(4)(ii). Where a claimant seeks child's benefits, the claimant must show that he/she is "disabled continuously and without interruption beginning before her twenty-second birthday until the time she applied for child's disability insurance benefits." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Thus, an important finding in determining whether a claimant is eligible for child disability benefits is the onset date of the disability.

In this case, the ALJ terminated the inquiry at Step Two with the conclusion that claimant was not currently disabled and did not suffer from a medically determinable impairment prior to age twenty-two.*fn2 However, this conclusion ignores the fact that claimant has been receiving Supplemental Security Income ("SSI") for her disability since February 2003. Tr. 18. The definition of disability for SSI is identical to the definition of disability for Childhood Disability Benefits. See 20 C.F.R. 416.905(a). The ALJ acknowledged, although he did not find dispositive, the fact that claimant was receiving SSI payments due to her disability since February of 2003. Tr. 18. Further, the consultation request, completed in association with the SSI benefits, stated that claimant is "currently incapable of going to a place of employment via public transportation and of relating to others and of completing daywork/weekwork activities without interruptions due to psychological factors." Id. at 220. Recent psychological examinations confirm that claimant "is experiencing a severe mental disorder" and has a "significantly compromised" level of adjustment. Id. at 242, 200. The record clearly indicates that claimant currently suffers from a disability. The critical determination, therefore, is whether the underlying impairment qualified as a disability prior to claimant reaching age twenty-two. This inquiry necessarily requires that an onset date for claimant's disability be determined. As will be discussed below, the determination of onset date must be made in consultation with a medical advisor. See Armtrong v. Commisioner of the Social Security Administration, 160 F.3d 587, 589 (9th Cir. 1998).

Although not dispositive in the present case, the court is additionally concerned with what appears to be a procedural deficiency in the ALJ's decision. In the evaluation section it is clear that the ALJ does not find an impairment, severe or otherwise, in existence prior to age twenty-two. However, the findings section indicates there is a current impairment, but that it is not severe enough to rise to the level of a disability. To the extent that the ALJ is making a severity determination, the procedures codified in 20 C.F.R. 404.1520a must be followed.*fn3 This regulation requires that "when we evaluate the severity of mental impairments for adults (persons age 18 and over) and in persons under age 18 . . . we must follow a special technique at each level of the administrative review process." 20 C.F.R. 404.1520a. The "special technique" requires specific ratings of the degree of limitation in four broad functional areas, analysis of the criteria of the appropriate listed mental disorder and standardized documentation of the utilized technique. These requirements were not observed in either the ALJ's or the Appeals Council's decision.

II. Compliance with Social Security Ruling 83-20

The ALJ committed reversible error by failing to call a medical expert to determine the onset date of claimant's mental impairment. The Ninth Circuit has held that if the "medical evidence is not definite concerning the onset date and medical inferences need to be made, [Social Security Ruling 83-20] requires the administrative law judge to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination." Delorme v. Sullivan, 924 F.2d 841, 848 (9th Cir. 1991). Social Security Ruling 83-20 states, in pertinent part, that "[i]n some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment occurred some time prior to the date of the first recorded medical examination." 1983 WL 31249 (S.S.A.).*fn4 The duration and severity of the impairment "depends on an informed judgment of the facts in the particular case," but "the administrative law judge should call on the services of a medical advisor when onset must be inferred." Id. For example, in Armstrong, the claimant filed applications for both Disability Insurance Benefits ("DIB") and SSI. After a hearing, the ALJ granted claimant's SSI application, but denied the DIB application, finding that the claimant was not disabled prior to the required date. Upon review, the Ninth Circuit held that the onset date was unclear and that "the ALJ therefore committed reversible error by failing to call a medical expert before inferring an onset date." Armstrong, 160 F.3d at 589.

In the present action, the ALJ concluded that "claimant did not have an impairment . . . before age twenty two, that caused more than minimal functional limitations." Tr. 19. However, the ALJ explicitly found that claimant suffers from a medically determinable impairment diagnosed as dysthymia. Id. at 19. A review of the record and evidence in this case reveals an ambiguity regarding the onset of claimant's mental impairment. Therefore, an inference would necessarily be required to determine the onset date of the disability. As Social Security Ruling 83-20 mandates, any inference with respect to the onset of a disability must have a legitimate medical basis formed in consultation with a medical advisor.

In the decision below, the ALJ relied primarily on the lack of therapy for claimant between the ages of seventeen and twenty-two as evidence of an absence of medical disability. Id. at 18. The Ninth Circuit, however, has "particularly criticized the use of a lack of treatment to reject mental complaints both because mental illness is notoriously underreported and because 'it is questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.'" Regennitter v. Commissioner of SSA, 166 F.3d 1294, 1299-1300 (9th Cir. 1999) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989)). Furthermore, since "mental disorders may manifest themselves over a period of time . . . the precise date of onset of a disabling psychological impairment may be difficult or impossible to ascertain, and the services of a specialist may be necessary to infer the onset date." Morgan v. Sullivan, 945 F.2d 1079, 1081 (9th Cir. 1991).

The lack of medical evidence, therefore, militates against inferring an onset date and in favor of consulting a medical advisor.

Defendant contends that because the ALJ found insufficient evidence of a severe impairment prior to age twenty-two, there is no onset date to determine in the case. While this argument has some logical pull, it is in complete contravention of the fundamental purpose of Social Security Ruling 83-20. As the Ninth Circuit has noted, "[i]f . . . an ALJ does not have to call a medical expert unless the claimant has fullfilled his burden of proving an onset date, SSR 83-20 would have no application." Armstrong, 160 F.3d at 590. Arguments such as those of defendant's render a medical expert useless because "[i]f the claimant proved a date, there would be no need to call a medical expert, and if the claimant . . . was unable to prove a date, then the ALJ would deny disability benefits because the claimant failed to carry his burden." Id. Thus, to ensure that claimant's eligibility for disability benefits receives a fair review, "where a record is ambiguous as to the onset of disability, the ALJ must call a medical expert to assist in determining the onset date." Id.

Defendant further argues that it is claimant's burden to prove she was disabled before reaching age twenty-two and that she has failed to meet this burden. Although claimant certainly bears the ultimate burden to prove disability, "the ALJ must assist in developing the record." Quarles v. Barnhart, 178 F.Supp.2d 1089, 1096 (N.D. Cal. 2001). In this case, the medical evidence is not clear with respect to the onset date of claimant's disability. "Rather than just inferring an onset date, which would deny a claimant benefits, [Social Security Ruling 83-20] requires that the ALJ create a record which forms a basis for that onset date." Armstrong, 160 F.3d at 590. Once "the ALJ has created a record and has a basis for selecting an onset date, the claimant who wishes to challenge that date bears the burden of proof." Id. In the action before this court, the ALJ failed to call a medical advisor and, therefore, was unable to determine an onset date for claimant's disability. By simply concluding that there was insufficient evidence to prove a disability existed prior to claimant reaching age twentytwo, the ALJ in effect inferred that the onset date occurred after the age of twenty-two. This conclusion is not in accordance with Social Security Ruling 83-20 and applicable law. The ALJ, therefore, erred when he did not call a medical advisor to determine the onset date of claimant's impairment and his judgment is reversed accordingly

III. ALJ's Determination of Claimant's Credibility

Claimant further argues that the ALJ erred by not making any findings as to whether claimant's subjective complaints were credible. If there is an objective medical basis for the existence of a symptom and no evidence of malingering, an ALJ must provide clear and convincing reasons for rejecting a claimant's subjective testimony. Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). However, given the ALJ's reversible error with respect to the use of a medical expert to determine onset date, the court need not reach this issue.


For the reasons stated above, the court GRANTS claimant's motion for summary judgment and DENIES defendant's motion for summary judgment. This action is hereby REMANDED pursuant to sentence four of 42 U.S.C. section 405(g) to the Commissioner for further proceedings consistent with the foregoing order. The clerk shall close the file.


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