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Augustine v. Astrue


August 2, 2010


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff J.R., through her mother Marcia Augustine, filed a complaint on June 2, 2009, seeking review of the Commissioner's decision denying her application for disability benefits. On October 16, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on December 30, 2009.


The plaintiff, who was born on July 7, 1997, is now 13 years old. A.R. 51, 55, 164. On May 19, 2004, plaintiff's mother filed an application on plaintiff's behalf for disability benefits under the Supplemental Security Income ("SSI") program of Title XVI of the Social Security Act, 42 U.S.C. § 1382(a), claiming plaintiff has been disabled since January 1, 2002, due to attention deficit hyperactivity disorder ("ADHD") and depression. A.R. 51-54, 71. The Social Security Administration found plaintiff was not disabled, and on August 16, 2006, plaintiff filed a complaint seeking review of that decision, Augustine v. Astrue, EDCV 06-0903-RC ("Augustine I").*fn1 On January 17, 2008, this Court granted plaintiff's request for relief and Judgment was entered remanding Augustine I to the Social Security Administration, pursuant to sentence four of 42 U.S.C. § 405(g). Augustine v. Astrue, 536 F. Supp. 2d 1147 (C.D. Cal. 2008); A.R. 195-205. The Appeals Council, in turn, remanded the matter for further administrative proceedings, A.R. 206-08, and on January 7, 2009, Administrative Law Judge F. Keith Varni ("ALJ") held a new administrative hearing. A.R. 348-64. On March 5, 2009, the ALJ issued a decision again finding plaintiff is not disabled, A.R. 176-88, and that decision is now before this Court for review.



The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Merrill v. Apfel, 224 F.3d 1083, 1084-85 (9th Cir. 2000).

A minor is "disabled" for purposes of the SSI program if she "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); Merrill, 224 F.3d at 1085. "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a three-step sequential evaluation process to follow when considering the disability application of a minor. 20 C.F.R. § 416.924. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity; if so, a finding of non-disability is made and the claim is denied. 20 C.F.R. § 416.924(b). If the claimant is not currently engaged in substantial gainful activity, in the Second Step, the ALJ must determine whether the claimant has a severe medically determinable impairment or combination of impairments; if not, a finding of non-disability is made and the claim is denied. 20 C.F.R. § 416.924(c). If the claimant has a severe impairment, in the Third Step, the ALJ must determine whether the claimant's impairment meets or medically or functionally equals an impairment in the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1, and if the claimant's impairment meets or equals an impairment in the Listing, and meets the durational requirement, disability is presumed and benefits are awarded; otherwise, a finding of non-disability is made and the claim is denied.

20 C.F.R. § 416.924(d).

Applying the three-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity at any relevant time. (Step One). The ALJ then found plaintiff has ADHD and an unspecified depressive disorder, which are severe impairments. (Step Two). Finally, the ALJ concluded plaintiff does not have an impairment or combination of impairments that meets or equals a Listing; therefore, plaintiff is not disabled. (Step Three).


The mere diagnosis of a listed impairment is insufficient, in itself, to support a finding of disability; rather, the claimant also must have the findings shown or symptoms detailed in the listing of that impairment. 20 C.F.R. § 416.925(d); Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990); Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). "To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings 'at least equal in severity and duration' to the characteristics of a relevant listed impairment, or, if a claimant's impairment is not listed, then to the listed impairment 'most like' the claimant's impairment." Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (citation omitted); Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).

Even if an impairment does not meet the requirements of, or is not medically equal to, a listed impairment, the claimant may be disabled if her impairment or combination of impairments is functionally equivalent to a listed impairment. 20 C.F.R. § 416.926a; Augustine, 536 F. Supp. 2d at 1151; Smith v. Massanari, 139 F. Supp. 2d 1128, 1135 (C.D. Cal. 2001). Functional equivalence is measured by assessing the claimant's ability to function in terms of the following six domains, which are "broad areas of functioning intended to capture all of what a child can or cannot do": (i) Acquiring and using information; (ii) attending and completing tasks; (iii) interacting and relating with others; (iv) moving about and manipulating objects; (v) caring for oneself; and (vi) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i-vi). An impairment or combination of impairments functionally equals a Listing if it results "in 'marked' limitations in two domains of functioning or an 'extreme' limitation in one domain[.]"*fn2 20 C.F.R. § 416.926a(a), (d). In evaluating a claimant's ability to function in each domain, the ALJ should answer the following questions about whether the claimant's impairments affect her functioning, and whether the claimant's "activities are typical of other children [of the same] age who do not have impairments": (1) What activities can the claimant perform? (2) what activities is the claimant unable to perform? (3) which of the claimant's activities are limited or restricted compared to other children the claimant's age who do not have impairments? (4) where does the claimant have difficulty with her activities -- at home, in child care, at school, or in the community? (5) does the claimant have difficulty independently initiating, sustaining, or completing activities? and (6) what kind of help does the claimant need to do her activities, how much help is needed, and how often is help needed? 20 C.F.R. § 416.926a(b)(2)(i)-(vi).

The ALJ found plaintiff does not meet or medically or functionally equal any listed impairment since her severe mental impairment does not impose any marked or extreme limitations. A.R. 182-88. With regard to the six functional equivalence domains, the ALJ found plaintiff has: less than a marked limitation in acquiring and using information; less than a marked limitation in attending and completing tasks; less than a marked limitation in interacting and relating with others; no limitation in moving about and manipulating objects; less than a marked limitation in the ability to care for herself; and no limitation in health and physical well-being. A.R. 184-88. The plaintiff, however, contends these findings are not supported by substantial evidence because the ALJ failed to properly consider: (1) the opinions of her treating psychiatrist, M.L. Valdes, M.D., as required by the Appeals Council's remand order; (2) a teacher's questionnaire; and (3) plaintiff's mother's testimony.

1. Treating Psychiatrist's Opinion

The medical opinions of treating physicians are entitled to special weight because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Therefore, the ALJ must provide clear and convincing reasons for rejecting the uncontroverted opinion of a treating physician, Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998), and "[e]ven if [a] treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing 'specific and legitimate reasons' supported by substantial evidence in the record." Reddick, 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).

In Augustine I, this Court summarized Dr. Valdes's medical assessment of plaintiff, as follows:

On March 16, 2005, Dr. Valdes examined plaintiff and diagnosed her with ADHD, a depressive disorder, borderline intellectual functioning and a learning disability, determined plaintiff's Global Assessment of Functioning ("GAF") to be 45[fn4] (highest past year 55),[fn5] and prescribed medication. A.R. 135, 152, 155. In making [this] assessment, Dr. Valdes noted plaintiff talks about hurting herself, and plaintiff cannot get along with others, cannot pay attention, cannot sit still, and cannot remember things from one assignment to the next. A.R. 135. Dr. Valdes found plaintiff's insight and judgment were poor, her memory was good, and she was oriented times three. A.R. 152. On April 26, 2005, Dr. Valdes reported plaintiff's initial response to medication was poor, and found plaintiff cannot process authority, is hyper all day, and runs into traffic. A.R. 151. On May 17, 2005, Dr. Valdes also noted plaintiff cries a lot and does not want to go to school.

A.R. 151. On July 12, 2005, Dr. Valdes opined the medication was now working, and plaintiff was calm and pleasant and was learning to get along with other children. A.R. 150. On September 15, 2005, Dr. Valdes noted plaintiff's grandmother was dying, and plaintiff was more depressed and anxious, has made statements she wants to kill herself, has started hitting herself, and is again not getting along with other children. A.R. 142. On October 13, 2005, Dr. Valdes reported plaintiff was doing well in school, but cries in the morning and when she comes home from school. A.R. 145.

[fn4] A GAF of 45 means the individual exhibits "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job)." American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000).

[fn5] A GAF of 55 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)."

Augustine, 536 F. Supp. 2d at 1152-53 n.4-5. This Court then determined "the ALJ's Step Three conclusion [was] not supported by substantial evidence" because "the ALJ failed to discuss any of Dr. Valdes's findings or opinions in his decision, and implicitly rejected many of Dr. Valdes's opinions." Id. at 1153.

Following remand, Dr. Valdes provided further medical records and assessments. A.R. 306-14, 324-38. Among other things, these records show that on August 31, 2007, Dr. Valdes examined plaintiff, who was having tantrums once or twice a day, but less severe, and noted that although she had a short attention and concentration span, her appearance, mood, affect and speech were appropriate, her sleep and appetite were okay, and she has responded well to medication. A.R. 335. On November 5, 2007, Dr. Valdes noted plaintiff gets depressed occasionally, but was behaving better at home, her attention and concentration were better with medication, and her appearance, affect and speech were appropriate. A.R. 333. On January 15, 2008, Dr. Valdes opined plaintiff was doing fair, she still had a short and impaired attention and concentration span, and her appearance, mood, affect and speech were still appropriate. A.R. 328. On February 28, 2008, Dr. Valdes diagnosed plaintiff as chronically learning disabled, noted she has disorganized and ruminative thoughts, and found evidence of depression, anxiety, inappropriate affect, compulsive behavior, destructiveness, aggressiveness, and self-abuse, and Dr. Valdes opined plaintiff's attitude was hostile, fearful and anxious; however, he further found there is no psychosis, developmental delays or abnormalities. A.R. 325. Dr. Valdes also opined plaintiff cannot maintain a sustained level of concentration, follow and understand simple instructions, adapt to new or stressful situations, or engage in an age appropriate level of skills in self-care. Id.

The ALJ rejected Dr. Valdes's opinions, stating:

I find the opinions of Dr. Valdes . . . are unpersuasive. First of all they are unsupported by any mental status examination which he has reported in his records or by any testing which he has done or ordered, and they are based solely on parent report. The financial motivation for such reports is obvious since the parent does not work and is supported on SSI herself for what she said was a heart condition. The opinions are contrary to Dr. Valdes' records which clearly show improvement and good response to medications when properly adjusted. Those opinions are also thoroughly rebutted by the opinions of the State Agency Board certified psychiatrists in both the initial case and the interim filing, and by the actual findings and conclusions of the psychological consultative examiner. . ..

A.R. 183.

An ALJ may properly reject a treating or examining physician's report that is inconsistent with the medical record. Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Morgan, 169 F.3d at 602. Here, as the ALJ noted, Dr. Valdes's opinions are contrary to that of examining psychologist Shirley Simmons, Ph.D., who examined plaintiff on September 15, 2008, diagnosed her with an unspecified depressive disorder, and opined plaintiff was "mildly" limited in her ability to understand and remember simple or complex instructions, carry out complex instructions, and make judgments on simple or complex work-related decisions, but was otherwise not limited. A.R. 339-47. Additionally, Dr. Valdes's opinions are contrary to those of nonexamining psychiatrists M. Becraft, M.D., Michael Skopec, M.D., K.D. Gregg, M.D., and N. Haroun, M.D. A.R. 112-17, 119-24, 301-05, 317-22. "The contrary opinions of [the examining and nonexamining physicians] serve as . . . specific and legitimate reasons for rejecting the opinion[] of [the claimant's treating physician]," Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); see also Morgan, 169 F.3d at 602 ("Inconsistencies between [treating and examining physicians'] conclusions provided the ALJ additional justification for rejecting [treating physician's] opinion."), and support the ALJ's determination that plaintiff is not disabled. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

Moreover, to the extent Dr. Valdes opined plaintiff cannot maintain a sustained level of concentration, follow and understand simple instructions, adapt to new or stressful situations, or engage in an age appropriate level of skills in self-care, A.R. 325, these opinions are contrary to Dr. Valdes's treatment notes, which indicate plaintiff was improving and her mental status was generally appropriate. A.R. 148, 150, 314, 328, 333, 335-36. Therefore, this was also a specific and legitimate reason for rejecting Dr. Valdes's opinions.*fn3 Tommasetti, 533 F.3d at 1041; Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003).

2. Teacher

"Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Thus, third party statements are competent evidence, and "an important source of information about a claimant's impairments[.]" Regennitter v. Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999); Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000); see also Smolen, 80 F.3d at 1289 ("[T]estimony from lay witnesses who see the claimant every day is of particular value. . . .").

On September 7, 2006, Paul Huff, plaintiff's fourth-grade teacher for math, social studies, and science, completed a questionnaire stating: plaintiff "seems to have problems processing oral and written instructions"; she "has difficulty following step[-]by[-]step instructions when completing math problems"; class discussions "seem to move to[o] quickly for her"; she "seems 'zoned out'" and possibly over-medicated; she struggles completing homework and it is obvious she does not get much support at home; and she "tries hard to complete assignments in class, but assignments that are handed in on time are of low quality." A.R. 201-08. Mr. Huff also opined plaintiff has no observed problems interacting and relating with others or caring for herself. A.R. 294-96. Mr. Huff concluded:

It is my personal and professional assessment that [plaintiff] needs a more stable and nurturing home environment. It is difficult to pass judgments this early in the year. [Plaintiff] seems to want attention and companionship from peers and myself but doesn't try and get it in any negative ways. She constantly wants to help me around the classroom and truly tries to do her best. . . .

[S]he seems to be in an almost "zombie"[-]like state where she is slow to process information and directions. [Plaintiff] has great behavior and a desire to [do] well in school, however[,] I think she lacks [the] basic skill to do so.

A.R. 298.

Here, the ALJ failed to discuss Mr. Huff's opinions, which was legal error. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Schneider, 223 F.3d at 975. Nevertheless, such error was harmless since Mr. Huff's opinions do now show plaintiff is disabled or has any limitations the ALJ did not find.*fn4 See Tommasetti, 533 F.3d at 1038 ("The court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate non-disability determination.") (citations and internal quotation marks omitted); Hart v. Astrue, 349 Fed. Appx. 175, 177 (9th Cir. 2009) (same); Tyler v. Astrue, 2010 WL 2135360, *8 (C.D. Cal.) ("[T]o the extent the ALJ failed expressly to address statements from [lay witnesses] that simply corroborated limitations the ALJ already accounted for in her decision, any error was harmless.").

3. Mother

The plaintiff also complains the ALJ did not properly consider her mother's testimony from both administrative hearings. At the first administrative hearing, Mrs. Augustine stated plaintiff has been diagnosed with ADHD, depression, and reduced cognitive functioning, plaintiff does not get along with other children, fights with them and tries to hurt them when she's depressed, and plaintiff tries to hurt herself by stabbing herself with a pencil, and can never be left alone. A.R. 164-75. At the time, Mrs. Augustine also stated plaintiff had not improved since she began receiving mental health treatment. A.R. 168. At the second administrative hearing, Mrs. Augustine testified plaintiff's depression has worsened, she does not get along with other children and tries to hurt them, and she sometimes tries to hurt herself by stabbing herself with pencils or taking extra medication. A.R. 351-63. Mrs. Augustine also stated plaintiff is now in special education in the sixth grade, and she has never been held back. A.R. 351-52, 359-60.

Plaintiff contends "the ALJ failed to discuss or even mention [Mrs. Augustine's] testimony[,]" Jt. Stip. at 11:13-12:16, 13:9-19, but this is incorrect. To the contrary, the ALJ specifically discussed Mrs. Augustine's testimony in both of his decisions,*fn5 concluding it "is consistent with [the ALJ's] findings" that plaintiff has a severe mental impairment, but not a disabling one. A.R. 16, 183. Here, plaintiff has not shown the ALJ's assessment is in any manner incorrect. Johnson v. Astrue, 303 Fed. Appx. 543, 545 (9th Cir. 2008); see also Vick v. Comm'r of the Soc. Sec. Admin., 57 F. Supp. 2d 1077, 1086 (D. Or. 1999) (ALJ properly considered lay testimony, and "was not required to explain his assessment of it any further" when he recited the testimony and "the ALJ's determination [was] not inconsistent with [it]. . . ."), affirmed by, 5 Fed. Appx. 781 (9th Cir. 2001).

For these reasons, there is no merit to plaintiff's claims, and plaintiff's request for relief should be denied.


IT IS ORDERED that: (1) plaintiff's request for relief is denied; and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant.

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