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Douglas v. Astrue

February 10, 2009


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on May 18, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of her application for supplemental security income ("SSI"). The parties filed a Joint Stipulation on February 2, 2008, in which: Plaintiff seeks an order reversing the Commissioner's decision and finding that Plaintiff is disabled and entitled to SSI benefits or, in the alternative, remanding the matter for a new administrative hearing; and Defendant requests that the Commissioner's decision be affirmed. On May 28, 2008, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The Court has taken the parties' Joint Stipulation under submission without oral argument.


On December 1, 1994, Plaintiff's mother, Kimberly Douglas, filed an application for SSI on behalf of her minor daughter, alleging disability based on "audio deficit disorder" and "hyper deficit disorder." (Administrative Record ("A.R.") 123-25, 134.) The Social Security Administration ("SSA") determined that Plaintiff was eligible for SSI, effective November 1, 1994, based on a primary diagnosis of "Learning Disorder" and secondary diagnosis of "ADD" (Attention Deficit Disorder). (A.R. 177.) In July 1997, the SSA conducted a continuing disability review*fn1 of Plaintiff's case and found that she had not medically improved*fn2 and functionally equaled Listing 112.02 for Organic Mental Disorders.*fn3 (A.R. 232, 246.)

In April 2004, the SSA again reviewed Plaintiff's case and determined initially and upon reconsideration that Plaintiff's condition had medically improved and her disability had ceased on April 1, 2001. (A.R. 362-65.) On March 8, 2006, Plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge Philip J. Simon ("ALJ"). (Joint Stipulation ("J.S.") 3.) On July 5, 2006, the ALJ denied Plaintiff's claim. (A.R. 41.) On April 7, 2007, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (A.R. 8-11.)


The ALJ found that Plaintiff continues to have "severe" medically determinable impairments, but as of April 1, 2001, she does not meet or medically equal a Listing in Appendix 1, Subpart P, Regulation No. 4.*fn4 (A.R. 41.) The ALJ recognized that, as of July 17, 1997, Plaintiff functionally equaled Listing 112.02, but found that Plaintiff had medically improved to the extent that she no longer meets, medically equals, or functionally equals any Listing. (A.R. 40.) The ALJ also noted that Plaintiff's mother's allegations regarding Plaintiff's symptoms and limitations were not fully credible. (A.R. 41.) Accordingly, the ALJ concluded that Plaintiff's disability status ceased effective April 1, 2001. (Id.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial evidence, only those "'reasonably drawn from the record'" will suffice. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff alleges the following five issues: (1) whether the ALJ's finding that there has been medical improvement in Plaintiff's condition is based on substantial evidence; (2) whether the ALJ's finding that Plaintiff's impairments do not meet or medically equal Listing 112.02 for Organic Mental Disorders is based on substantial evidence; (3) whether the ALJ's finding that Plaintiff's impairments do not meet or medically equal Listing 112.05 for Mental Retardation is based on substantial evidence; (4) whether the ALJ's finding that Plaintiff's impairments do not functionally equal any Listing is based on substantial evidence; and (5) whether the ALJ gave sufficient weight to the testimony of Plaintiff's mother. (J.S. 4.) For the reasons detailed below, the Court finds that despite evidence of some medical improvement, the nature and extent of Plaintiff's impairments continue to be sufficiently severe to meet or medically equal Listings 112.02 and 112.05. In view of this conclusion, the Court need not, and does not, address the fourth and fifth issues raised by Plaintiff.

I. The ALJ's Finding That Plaintiff Has Medically Improved Is Supported By Substantial Evidence

Medical improvement is defined as "any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled." 20 C.F.R. § 416.994a(c). To determine whether there has been medical improvement, the claimant's current condition must be compared with the claimant's condition on the last date that the claimant was found disabled. See 20 C.F.R. § 416.994a(b).

Here, in assessing whether Plaintiff's condition medically improved, the ALJ compared Plaintiff's medical condition on July 17, 1997, which was the last date on which Plaintiff received a favorable disability decision, to her medical condition at the time of his decision. (A.R. 32, 246.) In assessing the extent to which Plaintiff's medical condition improved, the ALJ relied on various psychological examination results, as well as the hearing testimony of medical expert Betty Borden, M.D., to conclude that "there has been substantial improvement in [Plaintiff's] level of adaptive, social, and academic functioning, thus constituting medical improvement." (A.R. 32.) After carefully reviewing the record as a whole, the Court concludes that the ALJ's finding of medical improvement is supported by substantial evidence and free from legal error.*fn5

On June 13, 1997, Plaintiff was examined by Mark D. Pierce, Ph.D., a clinical psychologist. (A.R. 404-10.) Testing revealed that Plaintiff had a performance IQ of 58, verbal IQ of 72, and full-scale IQ of 62. (A.R. 408.) Plaintiff was diagnosed with borderline intellectual functioning and probable ADHD. (A.R. 409.) At that time, Plaintiff's teachers reported that Plaintiff had "marked" limitations in most areas of school-related social functioning, cognitive functioning, and personal conduct. (A.R. 31, 238-40.) On July 17, 1997, SSA psychiatrist Melvin L. Schwartz, Ph.D, conducted a continuing disability review of Plaintiff's case and concluded that Plaintiff had "marked impairments in cognitive functioning and in concentration and persistence." (A.R. 237.) Dr. Schwartz determined that Plaintiff's impairments were "functionally equal to Listing 112.02B2[(a) and (d)]."*fn6 (Id.)

On March 27, 2001, Plaintiff underwent a consultative psychological evaluation, by Jack Stephenson, Ph.D., a licensed psychologist. (A.R. 417-22.) As part of the evaluation, Dr. Stephenson administered the Wechsler Intelligence Scale for Children ("WISC") III, a standard test used to assess intellectual ability, including verbal and nonverbal (performance) functioning. (Id.) See also Dr. Stephenson assessed Plaintiff with a performance IQ of 68, verbal IQ of 81, and full-scale IQ of 72. These scores represent a ten point improvement in her performance and full-scale IQ, and a nine point improvement in her verbal IQ.*fn7 (A.R. 422.)

On November 24, 2003, Dr. Stephenson re-evaluated Plaintiff. (A.R. 423-28.) Dr. Stephenson administered the updated Version IV of the WISC, which tested slightly different areas of cognitive functioning. Test results revealed improvement in all functional areas, except for working memory. Plaintiff was assessed with a perceptual reasoning IQ of 71; verbal comprehension IQ of 81; processing speed IQ of 100; full-scale IQ of 73; and working memory IQ of 62.*fn8 (A.R. 427.) Dr. Stephenson found that Plaintiff "appears to have developed quite nicely overall and is an engaging young woman whose interpersonal presentation appeared to be stronger than her testing on standardized measures." (A.R. 426.)

On December 8, 2005, G.A. Elmer Griffin, Ph.D., an SSA panel expert and psychology consultant retained on behalf of Plaintiff, conducted a psychological evaluation of Plaintiff. (A.R. 505-08.) Dr. Griffin administered the Test of Nonverbal Intelligence-III,*fn9 which revealed an IQ score of 93. (A.R. 507.) Dr. Griffin opined that Plaintiff has made "remarkable improvement since 1997," as her IQ score of 93 places her in the "low average range of intellectual functioning." (Id.)

Accordingly, substantial evidence in the record supports the ALJ's conclusion that Plaintiff's condition has medically improved since 1997.

II. The ALJ's Finding That Plaintiff Does Not Meet Or Medically Equal Listing 112.02 Is Not ...

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