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Orona v. Astrue

January 4, 2010

TERRY ORONA, ON BEHALF OF MINOR M.S.R., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION

I. SUMMARY

On September 17, 2008, Terry Orona ("plaintiff's mother"), as the guardian ad litem for minor child M.S.R. ("plaintiff"), filed a Complaint on behalf of plaintiff, seeking review of the Commissioner of Social Security's denial of an application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; September 23, 2008 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn1

II. CHILDHOOD DISABILITY CLAIMS -- SEQUENTIAL EVALUATION PROCESS

"An individual under the age of 18 shall be considered disabled 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); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1013 (9th Cir. 2003). In assessing whether a child is disabled, the Commissioner conducts a three-step sequential evaluation process:

(1) Is the child engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the child's impairment or combination of impairments severe? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the child's impairment or combination of impairments meet, medically equal, or functionally equal an impairment in the Listing of Impairments ("Listing") described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, the claimant is not disabled.

20 C.F.R. § 416.924(a).

A claimant "meets" a listed impairment if his impairments match those described in a Listing. 20 C.F.R. § 416.925(c). A claimant "medically equals" a listed impairment if he demonstrates medical findings related to his own impairments that are of equal medical significance to the listed one. 20 C.F.R. § 416.926(b).

To determine whether a child's impairments functionally equal a Listing, the ALJ must evaluate how the child's limitations affect six broad areas of functioning, called "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)(i)-(vi). A claimant "functionally equals" a Listing where "marked" limitations exist in two domains of functioning, or an "extreme" limitation exists in one domain. 20 C.F.R. § 416.926a(a).*fn2

III. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On November 21, 2003, plaintiff's mother, on behalf of plaintiff, filed an application for Supplemental Security Income benefits. (Administrative Record ("AR") 68-70). Plaintiff's mother asserted that plaintiff became disabled on January 28, 1993, and that he suffers from a learning disability, a loss of memory disability, attention deficit hyperactivity disorder ("ADHD"), and behavior changes. (AR 68, 91). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel) and plaintiff's mother on October 18, 2006. (AR 371-93).

On December 28, 2006, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 9-26). Specifically, the ALJ found:

(1) plaintiff has not engaged in substantial gainful activity at any relevant time (AR 15); (2) plaintiff suffers from the following severe impairments: asthma and ADHD (AR 15); (3) plaintiff does not suffer from an impairment or combination of impairments that meets, medically equals, or functionally equals one of the listed impairments (AR 17); (4) plaintiff has not been disabled since the*fn3 application was filed (AR 26); and (5) plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely credible (AR 17).

The Appeals Council denied plaintiff's application for review. (AR 4-6).

IV. FACTS

A. Medical Evidence

On November 30, 1999, Dr. Linkhart, a school psychologist to whom the Individual Education Program ("IEP") Team referred plaintiff due to academic concerns, conducted a psychological evaluation of plaintiff and reported the following: Plaintiff, who was then in the first grade, was functioning in the*fn4 average range for nonverbal intellectual ability, visual-motor integration and visual memory skills. (AR 164). He was at the kindergarten level in reading and written language, and at the beginning first grade level in arithmetic. (AR 164). His auditory memory and discrimination skills were significantly below average. (AR 164). Plaintiff displayed a learning disability related to impaired auditory memory and discrimination and a significant discrepancy between nonverbal intellectual ability and achievement in reading. (AR 165). Plaintiff displayed a moderate discrepancy between ability and achievement in written language. (AR 165).

On March 3, 2000, plaintiff's treating physician, Dr. Oliverio, completed a child assessment for plaintiff which reflects: Plaintiff, who was then in the 1st grade, had normal development in school progress, peer relationships, hobbies, and sports. (AR 212).

On September 17, 2001, school psychologist Dr. Linkhart reevaluated plaintiff and prepared another report which reflects the following: Plaintiff*fn5 displayed average range functioning in nonverbal intellectual ability, below average functioning in reading, solidly average functioning in math, and was well below average functioning in written production. (AR 181). He tested in the average range for visual motor integration skills, but the quality of his test response was poor. (AR 181). He displayed significantly below average functioning in auditory memory and discrimination skills. (AR 182). His visual memory skills were in the high average range. (AR 182).

On October 1, 2002, Dr. Oliverio completed assessments for plaintiff which reflect: Plaintiff, who was then in the 4th grade, had problems in school and possibly had ADD. (AR 207). His development was normal in school progress, peer relationships, hobbies, and sports. (AR 207). No (physical) developmental problem was suspected. (AR 248).

On November 7, 2003, treating physician Dr. Webb prepared a brief letter which reflects: Plaintiff has a documented learning disability in the areas of auditory discrimination and auditory memory with a significant discrepancy between nonverbal intellectual ability and achievement in reading. (AR 291, 363). He exhibited most of the behaviors of ADHD and probably only got about 30% of any direction or explanation he heard. (AR 291, 363). Plaintiff had a chronic condition which had a guarded to poor prognosis that severely disabled him. (AR 291, 363).

On February 4, 2004, consultative examining psychologist, Dr. Taylor, performed a psychological evaluation of plaintiff. (AR 255-60). After administering multiple tests, conducting a complete psychological examination, and reviewing plaintiff's medical records, Dr. Taylor reported: Plaintiff was not a credible participant in the examination and attempted to be "faking bad" cognitive impairment. (AR 259). His current and past teachers did not believe that he should be in a Special Day Class ("SDC"). (AR 259). Psychoeducational testing reflected average to low average academic abilities. (AR 259). He had presented himself to Dr. Taylor as moderately to profoundly mentally retarded, which was inconsistent with his daily functioning, presentation, vocabulary and abilities. (AR 259). Plaintiff's ability to understand and respond to increasingly complex requests was not impaired. (AR 259). He had no limitations in the ability to communicate through understanding and verbalization. (AR 259). He had no developmental and social delays and needed no ongoing supervision. (AR 259). Relating to authority figures, peers and family members presented no difficulties for him. (AR 259). His ability to respond to academic and social stimuli was age appropriate. (AR 259). His developmental learning reflected no impairment in his ability to process verbal and visual information. (AR 259). His ability to engage in and sustain activity for a normal period of time was not impaired due to cognitive deficits. (AR 259). His ability to maintain a normal pace was not impaired. (AR 259).

On or about February 19, 2004, Dr. Paxton, a non-examining reviewing physician, adopted the opinion that plaintiff's condition was severe, and that it did not meet, equal or functionally equal a listing. (AR 261).

On May 24, 2004, school psychologist Dr. Michaelson observed plaintiff in a classroom setting for twenty minutes and noted the following: Plaintiff's language skills, response to the environment, and organization were adequate, and his activity level was normal. (AR 272). With respect to peer interaction, plaintiff was aggressive and sought attention. (AR 272). With respect to adults/authority, plaintiff was friendly and sought attention, but needed reinforcement. (AR 272). His on-task behavior and motivation were variable and he was socially immature. (AR 272). He had a short attention span, was distractible, and was highly impulsive. (AR 272). With respect to following directions, plaintiff first observed others and needed repetition. (AR 272). His motor skills were clumsy. (AR 272). Plaintiff appeared on task much of the time, but frequently would shift, without finishing, from one task to another. (AR 272).

On May 24, 2004, school psychologist Dr. Michaelson observed plaintiff in a classroom setting for twenty minutes and noted the following: Plaintiff's language skills, response to the environment, and organization were adequate, and his activity level was normal. (AR 272, 309). With respect to peer interaction, plaintiff was aggressive and sought attention. (AR 272, 309). With respect to adults/authority, plaintiff was friendly and sought attention, but needed reinforcement. (AR 272, 309). His on-task behavior and motivation were variable and he was socially immature. (AR 272, 309). He had a short attention span, was ...


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