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Vasquez ex rel S.R.A. v. Astrue

May 19, 2009

MELISSA VASQUEZ EX REL. S.R.A., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff's mother filed this action on plaintiff's behalf for judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying plaintiff's application for child's supplemental security income ("SSI") disability benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural history of this case, which is summarized in the Joint Stipulation. [See JS 2]. Plaintiff was born on August 26, 1995 and was ten years old when her application for benefits was filed on December 1, 2005. [Administrative Record ("AR") 13, 55-61]. She alleged disability due to oppositional defiant disorder, attention deficit hyperactivity disorder, an anxiety disorder, and a depressive disorder.*fn1 [JS 2].

In a written hearing decision that constitutes the Commissioner's final decision, an administrative law judge ("ALJ") found that plaintiff has "severe mental impairments from what would colloquially be called a bad attitude, but in mental health jargon is described as an oppositional defiant disorder (ODD) and attention hyperactivity disorder (ADHD). She also has an anxiety disorder, according to a consultative psychiatrist (20 C.F.R. [§] 416.924(c))." [AR 13]. The ALJ concluded that from December 1, 2005 through the date of decision, plaintiff was not disabled under the childhood disability standard because her impairments were not medically or functionally equivalent to any impairment or combination of impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "listing"), and do not impose "marked or extreme limitations on function in any realm." [AR 13].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Standard governing childhood disability A child under the age of 18 is disabled within the meaning of the Social Security Act "if that individual 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)(as amended); see 20 C.F.R. § 416.906; see also Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000) (citing section 1382c(a)(3)(C)(I)). The regulations governing the evaluation of childhood disability provide that "if the child's impairment or impairments do not meet, medically equal, or functionally equal in severity a listed impairment, the child is not disabled." Brown v. Callahan, 120 F.3d 1133, 1135 (10th Cir. 1997) (citing 20 C.F.R. § 416.928 (a)); see 20 C.F.R. §§ 416.902, 416.906, 416.924-416.926a (regulations concerning childhood disability standards).

To meet a listed impairment, a claimant must show that his or her impairment "meet[s] all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). To medically "equal" a listed impairment, a claimant must present medical findings at least equal in severity and duration to all of the criteria for the most similar listed impairment. See Sullivan, 493 U.S. at 531; Tackett, 180 F.3d at 1099-1100; 20 C.F.R. § 416.926 (discussing medical equivalence for adults and children).

If a child disability claimant does not have an impairment or combination of impairments that meets or equals any listing, the ALJ must consider "whether it results in limitations that functionally equal the listings." 20 C.F.R. § 416.926a(a). "Functional equivalence" is determined not by reference to the criteria for any particular listed impairment, but by reviewing all relevant information in the case record, including information from a broad range of medical sources and non-medical sources, to assess the child's functioning in six areas, which are referred to as "domains." See 20 C.F.R. § 416.926a. The domains are: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating objects, (5) caring for oneself, and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). An impairment or combination of impairments functionally equals the listing if, applying criteria detailed in the Commissioner's regulations, it results in "marked" limitations in two of these domains or an "extreme" limitation in one domain. 20 C.F.R. § 416.926a(a),(e)-(l).

Treating Psychiatrist's Opinion

Plaintiff contends that the ALJ committed legal error by disregarding without explanation diagnoses of depression made by plaintiff's treating psychiatrist, Ike Ohiaeri, M.D. [JS 3-6].

The record includes treatment reports from Dr. Ohiaeri at Foothill Behavioral Health Clinic in Victorville, California, from October 25, 2005 (when plaintiff was ten years old) through September 5, 2007. [AR 90-100, 149-156]. According to Dr. Ohiaeri's notes, there was a gap of six months between plaintiff's initial visit in October 2005 and her next appointment in April 2006 because she lost her MediCal benefits during the period. [AR 98, 125]. During the September 2007 administrative hearing, plaintiff's mother, Ms. Vasquez, testified that plaintiff had been seen at that clinic since she was six years old, and that she was seen monthly. [AR 165]. At the time of the hearing, plaintiff's mother said that plaintiff was taking Paxil for depression and Focalin for ADHD. [AR 67, 165-166]. Zoloft had previously been prescribed but was discontinued. [AR 165-166]. Plaintiff's mother testified that plaintiff took her medications, and that they helped her "[t]o a point, not completely.... She tells me they don't ...


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