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Julie Brewster O/B/O D.B v. Michael J. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 2, 2011

JULIE BREWSTER O/B/O D.B., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Julie Brewster ("Brewster") filed this action on February 2, 2010 on behalf of her nephew D.B.*fn1 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on March 2 and 3, 2010. (Dkt. Nos. 10, 12.) On March 25, 2010, the Court, upon stipulation of the parties, remanded the case pursuant to Sentence Six of 42 U.S.C. § 405(g) because the recording of the administrative hearing on May 11, 2009 could not be located. (Dkt. Nos. 15, 16.) On April 16, 2010, the Court, upon stipulation of the parties, ordered the case reopened. (Dkt. No. 18.) On August 11, 2010, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Court has taken the matter under submission without oral argument. The decision of the Commissioner is remanded for further proceedings.

I. PROCEDURAL BACKGROUND

On July 14, 2005, an application for supplemental security income benefits was filed on behalf of D.B. Administrative Record ("AR") 12. The application was denied initially and upon reconsideration. AR 36-40, 44-48. Brewster requested a hearing before an Administrative Law Judge ("ALJ"). AR 34-35. On June 6, 2007, the ALJ conducted a hearing at which Brewster testified. AR 361-70. D.B. was present, but did not testify. Id. On June 22, 2007, the ALJ issued a decision denying benefits. AR 9-18. The Appeals Council denied the request for review. AR 3-5.

On February 7, 2008, Brewster filed Civil Action No. EDCV 08-00113 AGR on behalf of D.B. (See Case No. EDCV 08-00113 AGR, Dkt. No. 5.) On August 20, 2008, the Court, upon stipulation of the parties, remanded the case pursuant to Sentence Four of 42 U.S.C. § 405(g). AR 397-99. On September 26, 2008, the Appeals Council issued an order vacating the ALJ's decision and remanded the matter "for further proceedings consistent with the order of the court." AR 393-96. On May 11, 2009, the ALJ conducted a second hearing, at which additional exhibits were admitted. AR 436-40. No additional testimony was taken. Id. On November 4, 2009, the ALJ issued a decision denying benefits. AR 371-88. This action followed.

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.

III. DISCUSSION

A. Child Definition of Disability

"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).*fn2 An impairment is "marked and severe" if it meets, medically equals, or functionally equals an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix I. 20 C.F.R. § 416.924(d)(1). A claimant's condition "meets" a listed impairment if the claimant's impairment matches the listed impairment. Id. A claimant's condition "medically equals" the listed impairment by demonstrating medical findings that are of equal medical significance to the listed impairment. 20 C.F.R. § 416.926(b)(1)(ii). A claimant's condition "functionally equals" a listed impairment by showing either a marked limitation in two functional domains (out of six) or an extreme limitation in one domain. 20 C.F.R. § 416.926a(a). The six domains are acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulating objects, caring for yourself, and health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i-vi). A marked limitation is more than moderate and less than extreme, and occurs when an impairment(s) "interferes seriously with your ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). An extreme limitation occurs when an impairment(s) "interferes very seriously with your ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3)(i).

B. The ALJ's Findings

D.B. had the severe impairments of "asthma, sleep apnea, obesity, gastroesophageal reflux disease, bipolar disorder, and attention deficit hyperactivity disorder." AR 382. With respect to the six domains of function, D.B. had no limitation in acquiring and using information, no limitation in attending and completing tasks, less than marked limitation in interacting and relating with others, no limitation in moving about and manipulating objects, no limitation in the ability to care for himself, and marked limitation in health and physical well-being. AR 388.

C. Compliance with the Court's Remand Orders

Brewster argues that the ALJ failed to comply with the terms of the court's remand orders "to obtain plaintiff's school records, if available," "recontact treating sources, and reevaluate treating source evidence, if appropriate." JS 3.*fn3

The ALJ must comply with a district court's remand order. See Sullivan v. Hudson, 490 U.S. 877, 886, 109 S. Ct. 2248, 104 L. Ed. 2d 941 (1989) ("Deviation from the [district] court's remand order in the subsequent administrative proceedings is itself legal error."); Holliday v. Astrue, 2010 U.S. Dist. LEXIS 29808, *8-*9 (C.D. Cal. 2010). A failure to comply with the court's remand order is subject to harmless error analysis. Blanquet v. Astrue, 2011 U.S. Dist. LEXIS 6879, *12 (C.D. Cal. Jan. 24, 2011); see also McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (harmless error rule).

On August 20, 2008, this court remanded case no. EDCV 08-00113 AGR, upon stipulation of the parties, pursuant to Sentence Four of 42 U.S.C. § 405(g). AR 397. The stipulation provided, in pertinent part, that upon remand, the ALJ "will be directed to obtain plaintiff's school records, if available," "recontact treating sources, and reevaluate treating source evidence, if appropriate." AR 398. Thereafter, the Appeals Council remanded the case to the ALJ "for further proceedings consistent with the order of the court." AR 395.

Brewster's argument that the ALJ made no attempt to comply with the remand order mischaracterizes the record. The ALJ obtained a copy of D.B.'s June 2006 Individualized Education Program Report (AR 417-23) and June 2006 Multidisciplinary Psychoeducational Report from the Val Verde Unified School District (AR 424-35). JS 6. Since the last hearing was two years earlier (AR 363), the ALJ also attempted to contact Brewster to find out where D.B. was currently attending school. AR 400. However, the phone number provided by Brewster was no longer in service. Id.

The ALJ also requested an internal medicine examination and a psychiatric evaluation. See AR 401-11, 412-16.

Brewster argues the ALJ did not recontact treating sources as directed by the court. AR 398. The ALJ stated that, on December 22, 2008, counsel "was advised to obtain all medical records since the prior decision." AR 384. The April 21, 2009 Notice of Hearing advised Brewster she had the right to submit additional documentary evidence, present and question witnesses, and request issuance of subpoenas. AR 391. At the hearing, no one advised the ALJ that any treating records were missing. AR 438-39. The claimant bears the responsibility of coming forward with, or cooperating in the procurement of, all material evidence prior to or at the hearing. See 20 C.F.R. §§ 416.912(a) & (c), 416.916, 416.1435.

Brewster has not shown that the steps taken by the ALJ to develop the record were inadequate. Brewster has not identified any treating source evidence or school records that existed but were not made a part of the record on remand. Further, if such evidence existed, she has not explained why neither she nor her attorney obtained such evidence, or asked the ALJ for help in obtaining this evidence. See Bindner v. Astrue, 2008 U.S. Dist. LEXIS 120424, *11-*12 (C.D. Cal. 2008). The ALJ did not fail to comply with the remand order.

D. Examining Psychiatrist's Opinion

Brewster argues the ALJ failed to provide specific and legitimate reasons for rejecting the March 2009 opinion of examining psychiatrist Dr. Gessesse, who opined that D.B. suffered from a "[m]ood disorder, not otherwise specified" and concluded D.B.'s psychiatric prognosis was "poor to fair." JS 8, 10; AR 412-16.

An examining physician's opinion constitutes substantial evidence when it is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). An ALJ may reject an uncontradicted examining physician's medical opinion based on "clear and convincing reasons." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). When an examining physician's opinion is contradicted, "it may be rejected for 'specific and legitimate reasons that are supported by substantial evidence in the record.'" Id. (citation omitted).

The ALJ gave "little weight" to Dr. Gessesse's opinion because his conclusions were not supported by his own clinical findings or the record as a whole, and relied primarily on the subjective assertions of the claimant's guardian. AR 385. The ALJ's analysis was extensive and exhaustive.

Nevertheless, the ALJ's finding that D.B. has no limitation in attending and completing tasks is not supported by substantial evidence. AR 388. An ALJ need not accept a physician's opinion if it is "'inadequately supported by clinical findings.'" Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (citation omitted); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ found that Dr. Gessessee's conclusions were superficial, vague and not directly related to criteria of childhood disability. AR 385. The ALJ characterized the mental status examination as essentially normal. Id.

In March 2009, Dr. Gessesse opined D.B., at that time 14 years old, "would have [a] difficult time maintaining attendance at school consistently due to poor concentration and mood instability;" would be unable to carry out detailed and complex tasks; would have a difficult time carrying out simple tasks; would have the same difficulty accepting instructions from an instructor that he had during the mental status examination; would have the same difficult time interacting with students that he had interacting with Dr. Gessesse; and would not be able to deal with the stressors of school. AR 415. Dr. Gessesse noted that D.B. had been hospitalized in a psych unit for suicidal ideation seven months earlier in August 2008,*fn4 and at a very young age had attempted to jump in front of a moving car. AR 413. Dr. Gessesse observed that D.B. had psychomotor retardation, delayed speech, constricted affect, was unable to do serial 7s, and could remember only one word out of a three-word recall. AR 414. In addition, Dr. Gessesse observed that D.B. had difficulty in the interview with following instructions and interacting with the interviewer. AR 415. It is true, as the ALJ noted, that D.B.'s thought process was concrete, linear and goal oriented. He was alert and oriented, and exhibited no evidence of hallucinations, obsessions or paranoia. He was capable of abstract thinking and had an appropriate fund of knowledge, insight and judgment. AR 414. D.B. was "calm and well mannered." AR 412. Dr. Gessesse's conclusions in those areas are consistent, for example, with the ALJ's assessment that D.B. has no limitation in acquiring and using information. However, those conclusions do not diminish D.B.'s limitation in the area of attending and completing tasks.

The ALJ found no evidence of poor school attendance to support Dr. Gessesse's opinion. AR 385. The ALJ's finding is not supported by substantial evidence. As the ALJ noted, D.B. was in an Individualized Education Program (IEP).*fn5 AR 417-23. The IEP report dated June 2006 (at age 12) assessed D.B. with an "emotional disturbance." AR 418, 423. He had "[p]oor task completion; pays attention but does not turn in ass[]ignments; failing in all subjects."*fn6 AR 418.

The psychoeducational report dated June 2006 concluded D.B. met the eligibility criteria under emotional disturbance. AR 434. D.B.'s attendance is "sporadic." AR 425. D.B. must be constantly supervised because he is aggressive and frequently in fights. AR 424. Teacher rating indicated aggression, depression "that may result in an inability to carry out everyday activities or may bring on thoughts of suicide", learning problems in completing schoolwork, withdrawal, and at-risk for behavioral symptoms and adaptive skills. AR 430. Two teachers stated D.B. was depressed four out of five days. AR 431.

The report concluded D.B.'s depression met the three limiting conditions of affecting his educational performance, existing over a long period of time and to a marked degree. AR 434. The recommendations included strategies to help D.B. complete tasks, reduce noncompliance, and attain an attendance goal. AR 434-35.*fn7 As the ALJ noted, the reports indicated several positive areas. In psychological testing, D.B. "cooperated nicely and gave each task a good try." AR 426. D.B. was in the average range of intellectual ability, learning ability, and academic functioning. He exhibited sustained attention, good interpersonal skills, and persistence on tasks.*fn8 AR 427, 432-33. He scored in the average range for memory, and had no apparent deficit in adaptive functioning. AR 428. Similarly, the Riverside Department of Mental Health's subsequent assessment in January 2007 diagnosed D.B. with depressive disorder NOS.*fn9 AR 332. D.B.'s appearance, orientation, mood, affect, attention, concentration, psychomotor, speech and thoughts were within normal limits. AR 331. His intelligence was average, his memory was intact and his insight and judgment were fair. Id. He did not exhibit hallucinations or delusions. AR 336-37. However, these assessments do not diminish D.B.'s marked limitation in attending and completing tasks.

The ALJ noted that Dr. Gessesse's opinion also relied on Brewster's statements. AR 385. The fact that an opinion is based on the patient's subjective complaints may be properly considered. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). However, Dr. Gessesse stated that he relied upon his own observations, as discussed above. The parent rating (Brewster) in the psychoeducational report was lower than either the teacher rating or D.B.'s self report. The parent rating indicated a high level of maladjustment, including hyperactivity, aggression, antisocial behavior, anxiety, depression, withdrawal, and attention problems. AR 428-29. However, even discounting the parent rating and relying only on the teacher rating, the report supports a marked limitation in attending and completing tasks.

The ALJ's reasons for discounting Dr. Gessesse's opinion in the area of attending and completing tasks is not supported by substantial evidence. Accordingly, this matter will be remanded to the Commissioner for further proceedings based on a finding of marked limitations in the functional areas of attending and completing tasks, and health and physical well being.

E. Duty to Obtain Updated Medical Opinion

Brewster argues that because additional evidence was submitted after Dr. Hurwitz's October 2005 medical evaluation (AR 112-20), the ALJ was required to obtain an updated report from a medical expert. JS 17-18. Brewster cites Social Security Ruling ("SSR") 96-6p for the proposition that the ALJ must obtain an updated medical expert opinion before making a decision of disability. Id. Brewster's argument is unavailing.

SSR 96-6p,*fn10 provides that an ALJ must obtain an updated medical opinion from a medical expert either (1) when no additional medical evidence is received, but in the opinion of the ALJ or the Appeals Council the symptoms, signs, and laboratory findings reported in the case record suggest that a judgment of equivalence may be reasonable; or (2) when additional medical evidence is received that in the opinion of the ALJ or the Appeals Council may change the state agency medical or psychological consultant's finding that the impairment is not equivalent in severity to any impairment in the Listing of Impairments.

Brewster contends that the Appeals Council "implicitly opined that the additional medical evidence may have changed the State agency consultant's findings." JS 19-20 (citing AR 395). However, the Appeals Council made no such finding. See AR 393-96. The ALJ was not required to obtain an updated medical opinion from Dr. Hurwitz.

F. Lay Witness Statements

Brewster further contends that the ALJ erred in failing to properly consider her lay witness statements. In childhood disability cases, where the child is unable to adequately describe his symptoms, the Commissioner accepts the testimony of the person most familiar with the child's condition, such as a parent. Smith ex rel. Enge v. Massanari, 139 F. Supp. 2d 1128, 1134 (C.D. Cal. 2001). When an ALJ discounts such lay witness testimony, he must give reasons that are "germane" to that witness. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).

The ALJ discounted Brewster's statements to the extent they were not supported by the record. AR 384. Objective medical evidence provides a valid basis for discounting lay witness testimony. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ("One reason for which an ALJ may discount lay testimony is that it conflicts with medical evidence."); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (inconsistency with medical evidence is a germane reason for discrediting lay witness). As discussed above, Brewster's statements were more extreme than the teacher rating and conclusions in the psychoeducational report. The ALJ's finding was supported by substantial evidence.*fn11

IV.

ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is remanded for further proceedings based on a finding of marked limitations in the functional areas of attending and completing tasks, and health and physical well being.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.


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