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Xiong v. Astrue

September 10, 2008



This social security action was submitted to the court without oral argument for ruling on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment. For the reasons explained below, plaintiff's motion is granted, defendant's cross-motion is denied, the decision of the Commissioner of Social Security (Commissioner) is reversed, and the matter is remanded with the direction to grant benefits.


On March 25, 2004, plaintiff applied for Supplemental Security Income (SSI) childhood disability benefits under Title XVI of the Social Security Act for her son Pha, who was then nine years old. (Transcript (Tr.) at 44-47.) Plaintiff alleged that Pha was disabled by slow learning, slow function, short temper, hurting himself, headaches, depression, hitting himself in the mouth, and hitting his head against the wall. (Tr. at 76.) The application was denied initially and upon reconsideration. (Tr. at 29-33, 36-40.) On April 12, 2006, an administrative law judge ("ALJ") held a hearing at which both plaintiff and Pha, who were represented by a non-attorney, testified. (Tr. at 41, 193-206.) In a decision dated July 24, 2006, the ALJ determined that Pha was not disabled. (Tr. at 11-21.) The ALJ entered the following findings:

1. The claimant was born on July 22, 1994. Therefore, he was a school-age child on March 25, 2004, the date the application was filed, and is currently a school-age child (20 CFR 416.926a(g)(2)).

2. The claimant has not worked or otherwise engaged in substantial gainful activity at any time relevant to this decision (20 CFR 416.924(b) and 416.972).

3. The claimant has the following severe combination of impairments: receptive and expressive language deficit, learning disorder NOS, disruptive behavior disorder NOS (20 CFR 416.924(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).

5. The claimant does not have an impairment or combination of impairments that functionally equals the listings (20 CFR 416.924(d) and 416.926a).

6. The claimant has not been disabled, as defined in the Social Security Act, since March 25, 2004, the date the application was filed (20 CFR 416.924(a)). (Tr. at 14-20.) On November 30, 2006, the Appeals Council denied plaintiff's request for review of the ALJ's hearing decision. (Tr. at 4-7.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on January 30, 2007.


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record as a whole and the proper legal standards were applied. Schneider v. Comm'r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Morgan, 169 F.3d at 599); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

A reviewing court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. Jones, 760 F.2d at 995. The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

In determining whether or not a child is disabled for purposes of the SSI program, the ALJ should apply the three-step sequential evaluation process established under Title 20 of the Code of Federal Regulations, § 416.924. This evaluation process was developed after the statutory definition of childhood disability and the standard for determining whether a child is eligible for disability benefits were altered in 1996 by the Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, § 211, 110 Stat. 2105 (1996). See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1013 (9th Cir. 2003) (citing legislative history indicating that the change in the law was designed so that only needy children with severe disabilities will be eligible for SSI); Jamerson v. Chater, 112 F.3d 1064, 1065, 1067-68 (9th Cir. 1997) (recognizing the more stringent standard imposed by the 1996 legislation).

A child, defined as "[a]n individual under the age of 18," is disabled for purposes of the SSI program if the child "has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i). The three-step evaluation process requires the ALJ to determine (1) whether the claimant is currently engaged in substantial gainful activity, (2) whether the claimant has a medically determinable impairment or combination of impairments that is severe, and (3) whether the claimant's impairment or combination of impairments meets or medically equals the requirements of a listed impairment, or functionally equals the listings. 20 C.F.R. § 416.924(b)-(d). See Nesmith ex rel. A.S. v. Astrue, No. CV-07-217-CI, 2008 WL 958206, at *2 (E.D. Wash. Apr. 8, 2008); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1150-51 (C.D. Cal. 2008); Smith v. Massanari, 139 F. Supp. 2d 1128, 1132 (C.D. Cal. 2001). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995).


Plaintiff seeks summary judgment or remand for a new hearing on the grounds that (1) the ALJ erred in finding that Pha's impairments did not meet or equal Listing 112.02 -Organic Mental Disorders; (2) the ALJ failed to properly evaluate and credit the medical evidence regarding Pha's functional limitations; and (3) the ALJ failed to properly credit the lay testimony and third party statements of Pha's mother as to the nature and impact of Pha's impairments and functional limitations.

Plaintiff's arguments challenge the ALJ's findings at the third step of the three-step evaluation process, i.e., the determination of whether the claimant has an impairment or combination of impairments that meets, medically equals, or functionally equals a listed impairment. Plaintiff's arguments are addressed below.

I. The ALJ's Determination that Pha's Impairments Did Not Meet or Medically Equal Listing 112.02

Listing 112.02 describes and sets forth the criteria for organic mental disorders, which comprise one of eleven diagnostic categories of mental disorders in children. See 20 C.F.R. § 404, Subpt. P, App. 1, § 112.00A.*fn2 The introduction to Listing 112.02 describes organic mental disorders as follows:

Organic Mental Disorders: Abnormalities in perception, cognition, affect, or behavior associated with dysfunction of the brain. The history and physical examination or laboratory tests, including psychological or neuropsychological tests, demonstrate or support the presence of an organic factor judged to be etiologically related to the abnormal mental state and associated deficit or loss of specific cognitive abilities, or affective changes, or loss of previously acquired functional abilities.

The required level of severity for these disorders is met when the requirements in both A and B are satisfied.

Id. at § 112.02.

For each of the eleven diagnostic categories of mental disorders in children, paragraph A criteria describe "a set of medical findings," while paragraph B criteria describe "a set of impairment-related functional limitations." Id. at § 112.00A.

The purpose of the criteria in paragraph A is to substantiate medically the presence of a particular mental disorder. Specific symptoms and signs under any of the listings 112.02 through 112.12 cannot be considered in isolation from the description of the mental disorder contained at the beginning of each listing category. Impairments should be analyzed or reviewed under the mental category(ies) indicated by the medical findings. . . .

The purpose of the paragraph B criteria is to describe impairment-related functional limitations which are applicable to children. Standardized tests of social or cognitive function and adaptive behavior are frequently available and appropriate for the evaluation of children, and, thus, such tests are included in the paragraph B functional parameters. The functional restrictions in paragraph B ...

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