The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff Michael L. Garcia ("Michael"), by and through his guardian ad litem Angel Chaparro (hereinafter referred to as "Ms. Chaparro"), seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for child's supplemental security income, pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1
FACTS AND PRIOR PROCEEDINGS*fn2
Ms. Chaparro filed an application for benefits on February 14, 2006. AR 101-107. After being denied both initially and upon reconsideration, Ms. Chaparro requested a hearing before an Administrative Law Judge ("ALJ"). AR 82-85, 87-90. ALJ James Berry held a hearing on April 3, 2008. AR 44-68. The ALJ issued a decision denying benefits on May 29, 2008. AR 14-25. On May 1, 2009, the Appeals Council denied review. AR 1-3.
ALJ Berry held a hearing on April 3, 2008, in Fresno, California. Michael was present for the hearing. Ms. Chaparro, Michael's mother, his stepfather Anthony Chaparro and his grandmother Elizabeth Serrato testified at the hearing. AR 44-46.
Michael was born on November 8, 1998, and was nine years old at the time of the hearing. AR 49. He had just started the third grade and was taking regular classes. AR 49.
Michael has a history of hyperactivity and behavioral problems that began prior to kindergarten. AR 49. In kindergarten, Michael would run from the classroom, prompting the principal and teachers to give chase. AR 49. Occasionally he would run to his older brother's classroom where he would "flip everybody off." AR 49-50. In an effort to avoid being returned to the classroom, Michael would "hold onto a tree." AR 50. Michael's grandmother indicated he would often throw temper tantrums in her care and refuse to attend school. Michael's tantrums have included attempting to exit a moving vehicle and showering with his clothes on. AR 61-62. On one occasion, Michael's grandmother had to "hold [Michael] down on the floor" to keep him from running away. AR 62. On another occasion, Michael threatened to tell the police that his mother was trying to kill him with a knife. AR 62-63.
The Chaparros were convinced by school officials to hold Michael back a year; however, when he later returned to school, Michael's behavior had worsened. AR 50. For example, Michael hit other children, and failed to listen, sit still, pay attention or obey commands. AR 50. The Chaparros were often called to pick Michael up from school after these incidents, and occasionally Michael was suspended from school. AR 50. According to Ms. Chaparro, Michael was "hardly ever in school" during the second grade. AR 50.
Michael's behavior has also included kicking his mother and grandmother, damaging his grandmother's property, and running away from home. AR 50. Michael was once found by police after having escaped the Chaparro home through a window, prompting intervention by Child Protective Services ("CPS"). CPS advised Ms. Chaparro that Michael should receive mental health treatment. AR 50-51, 59. There have been other incidents involving Michael and calls to the police for assistance. AR 59, 62-63.
The Chaparros have heard Michael talking to himself, primarily when he is alone. AR 52, 60. He has nightmares wherein people are trying to kill him or Ms. Chaparro. Michael told his mother "that he has two brains and one of them tells him to do bad things and the other one tries to fight it but [Michael] says the one that tells him to do bad things is stronger than the one . . . trying to do good." AR 52.
Following a mental evaluation, Michael was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and bipolar disorder. AR 52. After initially refusing a course of treatment involving medication, the Chaparros agreed that Michael could be placed on prescription medication to treat his mental disorders. This decision was made after Michael was expelled from all schools within the district. AR 55, 57-58. Michael was prescribed Concerta and continues to take the medication in a greater dosage than that initially prescribed. He becomes defiant and argumentative when his medication wears off in the evenings. AR 52-53, 58. Michael has received mental health counseling and remains under a doctor's care. AR 55. Michael often fights with his brothers and sisters. He is too rough, and "doesn't know how to play with them," and before long his younger siblings are crying. AR 53-54. Ms. Chaparro's oldest son has indicated that the children in the neighborhood do not want to play with Michael. AR 54.
School officials recently advised Ms. Chaparro that Michael is "pushy" and remains argumentative, nevertheless, once Michael began taking the prescription medication his overall behavior has improved. AR 55, 66-67. Ms. Chaparro acknowledged that homework remains a problem because Michael does not complete the homework, nor does he turn it in as assigned. AR 56-57.
In May 2005, Michael was seen by Sonia Sahai-Bains, M.S., an unlicensed mental health clinician with the Children's Mental Health Division of the Department of Children and Families. AR 170. Ms. Sahai-Bains noted Michael had often pushed, hit, and kicked others in class. AR 170. She also noted that CPS became involved because Michael ran away from home. AR 170. Ms. Chaparro told Ms. Sahai-Bains that Michael played with fire, specifically, lighting his teddy bear on fire in the fireplace and almost causing the hallway to catch on fire. AR 170.
In addition, Michael had hallucinations where he would imagine two people sitting in a room trying to kill his mother. AR 170. Michael wakes up in the middle of the night sweating but Ms. Chaparro did not elaborate on what happened next. AR 170. Also, Ms. Chaparro described Michael as having "two brains," where one controlled the other and made him forget his previous behaviors. AR 170.
Ms. Sahai-Bains opined that Ms. Chaparro "seems to enable [Michael] to not be held accountable [for his] actions." AR 170. Ms. Sahai-Bains noted that Michael's biological father and Ms. Chaparro were back together, and that Michael's father did not tolerate much from Michael. AR 170. Michael's father stated that Michael knew his father's expectations of him and did not "test him" as much. AR 170. Ms. Sahai-Bains diagnosed Michael with Oppositional Defiant Disorder and noted that Michael's Global Assessment of Functioning score was 55.*fn3 AR 168-169.
Through late May and early June 2005, Ms. Sahai-Bains' notes indicate Ms. Chaparro's failure to show up for an appointment and subsequent scheduling conflicts. AR 165-167. On June 14, 2005, Ms. Sahai-Bains noted that Ms. Chaparro had missed two appointments and attempts to contact her were unsuccessful. AR 163-164. A letter was sent to Ms. Chaparro advising that Michael's case had been closed. AR 164.
2005-2006 Student Conduct Referrals
From August 24, 2005 to February 9, 2006, numerous student conduct referrals concerning Michael's behavior were completed. AR 177-182. The conduct included: stealing, arguing with teachers, throwing tantrums, pushing others, running away, cussing and inappropriate gestures, and inappropriate play activity. AR 177-182. Michael's parents were often called and Michael was sent home. AR 177-182. On occasion, Michael was suspended. AR 177-182.
On April 29, 2006, Michael was seen by board certified psychiatrist Ekram Michiel. AR 183-185. Dr. Michiel noted that Ms. Chaparro felt Michael could not be around people and threw tantrums whenever he was around them. AR 183. Ms. Chaparro reported that she was called every day to pick Michael up from school due to his behavior, ultimately forcing Ms. Chaparro to quit her day job as a counselor for a residential care treatment facility. AR 183. Michael's behavior led to his expulsion from kindergarten, and subsequent suspensions. AR 183.
During the examination, Dr. Michiel noted that Michael paced nonstop, and was very talkative, "especially to himself." AR 184. In addition, Michael refused to answer Dr. Michiel's questions. AR 184. Michael did not listen, and it was difficult to get his attention or make him focus. AR 184. According to Ms. Chaparro, Michael's hyperactivity and attention deficit disorder may be hereditary because one of his uncles exhibits the same symptoms. AR 183. Ultimately, Dr. Michiel diagnosed Michael with ADHD, and assigned a GAF score of 65.*fn4 AR 184.
Dr. Michiel believed Michael was capable of handling daily life activities, but that Michael needed to continue "psychotherapy to build up his social skills." AR 184. Dr. Michiel opined that Michael's ...