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Thomas v. Astrue

March 31, 2010


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


On October 27, 2008, plaintiff's mother filed a Complaint on behalf of her minor daughter ("plaintiff") seeking review of the denial by the Social Security Commissioner ("Commissioner") of her application for supplemental security income ("SSI"). On May 6, 2009, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on July 13, 2009, 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. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On June 14, 1994, plaintiff's mother filed an application for SSI on behalf of plaintiff, who was born on March 26, 1994, alleging disability based on asthma. (Administrative Record ("A.R.") 82-94.) In a favorable decision dated July 1, 1997, Administrative Law Judge Morton J. Rubin ("ALJ Rubin") determined that plaintiff was eligible for SSI, effective June 14, 1994, based on "severe" chronic pulmonary insufficiency. (A.R. 740.) ALJ Rubin found that the severity of plaintiff's pulmonary impairment met the criteria of Medical Listing 103.02(C)(2).*fn1 (A.R. 741.)

Following ALJ Rubin's favorable disability determination, the Social Security Administration ("SSA") conducted a continuing disability review*fn2 of plaintiff's case and, on February 14, 2002, found that plaintiff had medically improved as of February 1, 2002. (A.R. 68-72.)

Benefits were ceased effective February 1, 2002. (A.R. 68.) Plaintiff appealed the SSA's determination. (A.R. 73-77.)

On January 7, 2004, plaintiff and her mother, who were not represented by counsel, testified at a hearing before Administrative Law Judge Edward Graham ("ALJ Graham"). (A.R. 48-65.) At the hearing, plaintiff's mother testified that plaintiff continued to be disabled due to her asthma and also alleged that plaintiff experienced educational difficulties and trouble with attention and concentration. (A.R. 28, 56.)

On January 22, 2004, ALJ Graham issued an unfavorable decision. (A.R. 27-34.) ALJ Graham found that plaintiff's asthma had medically improved, and her asthma no longer met or medically equaled the severity of Section 103.02(c)(2) or any other section of the medical listings. (A.R. 28.) ALJ Graham also found that neither plaintiff's asthma nor her attention deficit hyperactivity disorder ("ADHD") results in an "extreme" limitation in any domain of functioning or a "marked" limitation in two domains of functioning, and neither impairment functionally equals the severity of the listings.*fn3 (A.R. 33.) ALJ Graham determined that plaintiff had not been under a disability at any time since February 1, 2002, and the Appeals Council subsequently denied plaintiff's request for review of ALJ Graham's decision. (A.R. 4-6, 33.)

On April 21, 2005, plaintiff's mother filed a Complaint in this Court on behalf of plaintiff in Case No. CV 05-2695. On February 3, 2006, pursuant to a stipulation of the parties, the Court entered an Order remanding the matter for further administrative proceedings. (A.R. 335-40.) In the stipulated remand Order, the ALJ was directed to "consider all of the evidence and evaluate the [p]laintiff's symptoms to determine whether the [p]laintiff's condition medically improved" and "include a comparison evaluation in the record." (A.R. 337-38.) On March 28, 2006, the Appeals Council remanded the case to the ALJ for compliance with the stipulated remand Order. (A.R. 341-42.)

On October 17, 2006, plaintiff and her mother, who were represented by counsel, testified at a hearing before ALJ Graham. (A.R. 680-87.) ALJ Graham continued the hearing to allow plaintiff to undergo a consultative medical examination. (A.R. 683.) On October 25, 2007, plaintiff, her mother, and their counsel appeared before ALJ Graham for a supplemental administrative hearing. (A.R. 688-709.) ALJ Graham again continued the hearing, because plaintiff had not yet undergone a consultative medical examination. (A.R. 686.) On April 2, 2008, following a consultative examination of plaintiff by Claudine Aguilar, M.D., plaintiff, her mother, and their counsel attended a final hearing before Administrative Law Judge Robert Evans ("ALJ"). (A.R. 710-34.) On June 26, 2008, the ALJ issued an unfavorable decision, in which he found medical improvement in plaintiff's asthma. (A.R. 289-300.)


Regarding plaintiff's asthma, the ALJ found that:

As compared with the findings in 1994, [plaintiff] no longer requires nocturnal supplemental oxygen because of recurrent episodes of hypoxemia. There is no evidence of constant wheezing and coughing, frequent emergency room treatments, constant monitoring of the child's medical condition and ongoing symptomatology despite treatment. The treatment regimen does not require multiple medications as well as use of a nebulizer four times a day.

(A.R. 293.)

Regarding plaintiff's alleged mental impairment(s), the ALJ found that plaintiff's ADHD, with which she had been diagnosed since the July 1, 1997 comparison point decision ("CPD"), is "severe," but plaintiff is "not retarded and is not learning disabled," as plaintiff's mother alleges. (A.R. 295.) The ALJ concluded that neither plaintiff's mental health records nor plaintiff's school records: support a finding that plaintiff has a disabling mental condition; or corroborate the "marked" or "extreme" mental limitations alleged by plaintiff's mother. (A.R. 294-95.)

Thus, the ALJ determined that plaintiff's impairments do not meet or medically equal any section of 20 C.F.R. Part 404, Subpart P, Appendix 1, and do not functionally equal any of the impairments listed in the medical listings (20 C.F.R. §§ 416.994a(b)(2), 419.926a and SSR 05-03p). (A.R. 297.) The ALJ concluded that plaintiff's disability ended as of February 1, 2002, and she has not become disabled again since that date. (A.R. 299.)


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.'" ...

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