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Irma Rivera O/B/O J.R v. Michael J. Astrue

July 8, 2011


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Plaintiff Irma Rivera, on behalf of her minor son, J.R., appeals a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income ("SSI"). She claims that the Administrative Law Judge ("ALJ") erred when he:

(1) failed to comply with an Appeals Council remand order requiring him to obtain a psychological evaluation; (2) determined that J.R. was not credible; and (3) failed to consider the side effects of J.R.'s medication in determining whether he was disabled. (Joint Stip. at3.) For the reasons explained below, the appeal is denied and the action is dismissed with prejudice.


In October 2006, Plaintiff applied for SSI on behalf of J.R., her then-11-year-old son, alleging that he had been disabled since May 2001, due to depression and schizophrenia. (Administrative Record ("AR") 177-79, 203-30.) The Agency denied the application initially and on reconsideration. (AR 65-66, 85-93.) Plaintiff then requested and was granted a hearing before an ALJ. On November 18, 2008, Plaintiff and J.R. appeared without counsel at the hearing. (AR 44-55.) On January 29, 2009, the ALJ issued a decision denying benefits. (AR 73-84.) Plaintiff appealed to the Appeals Council, which remanded the case to the ALJ for further proceedings. (AR 126-27.) After remand, the ALJ held another hearing (AR 27-43), and, on October 20, 2009, issued a second decision, again denying Plaintiff's claim for benefits. (AR 12-26.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-3.) She then commenced the instant action.


A. The ALJ's Failure to Adhere to the Appeal's Council's Remand Order

Plaintiff complains that the ALJ failed to follow the Appeals Council's remand order because he did not obtain a qualifying psychological evaluation, as ordered. For the following reasons, this claim is rejected.

Following the ALJ's initial decision denying benefits, Plaintiff appealed to the Appeals Council. The Appeals Council concluded that the ALJ had erred and remanded the case back to the ALJ to, among other things:

Obtain additional evidence concerning all of the claimant's mental impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 416.912--913). The additional evidence will include a psychological consultative examination with psychological testing and a statement regarding the claimant's impairments and any resulting functional limitations. Evaluate the mental impairments in accordance with the six domains of functioning used for school-age children (age 6 to attainment of age 12), and for adolescents (age 12 to attainment of age 18) (20 CFR 416.926a). (AR 127.)

In response, the ALJ ordered a consultative examination by psychologist Douglas W. Larson. (AR 302-07.) In addition to reviewing the records and examining J.R., Dr. Larson administered three, age-appropriate diagnostic tests on J.R. (AR 304-06.) Dr. Larson determined that J.R. was moderately impaired in five of six areas of functioning. (AR 306.) Inexplicably, however, though J.R. was 13 years old at the time, Dr. Larson characterized J.R.'s limitations in terms of ability to perform in the workplace, i.e., to interact appropriately with supervisors, comply with job rules, respond to change in a workplace setting, and maintain persistence in a workplace setting. (AR 306.) The ALJ and the medical expert recognized this error and discounted Dr. Larson's findings, in part, for that reason. (AR 19, 34-36.)

Plaintiff argues that the ALJ's rejection of Dr. Larson's evaluation because it was couched in terms of ability to function in the workplace was tantamount to not having a psychological evaluation at all, contrary to the remand order of the Appeals Council. (Joint Stip. at 4-5.) She argues that this error requires automatic reversal because ALJs are required to follow the remand orders of the Appeals Council, citing Ruiz v. Apfel, 24 F.Supp.2d 1045, 1050 (C.D. Cal. 1998) and various regulations.

The Agency argues that the ALJ did follow the Appeals Council remand order and that, even if he didn't, his decision should be affirmed because this Court is not authorized to consider whether ALJs follow the dictates of Appeals Council remand ...

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