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Cynthia Willmett, For A.P v. Michael J. Astrue

August 24, 2011

CYNTHIA WILLMETT, FOR A.P., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff filed an application for social security benefits on behalf of her minor daughter, referred to in this order as "A.P." Plaintiff herein seeks judicial review through counsel of a final decision of the Commissioner of Social Security ("Commissioner") denying an application for Supplemental Security Income ("SSI") child benefits under Title XVI of the Social Security Act ("Act").*fn1 Presently before the court is plaintiff's motion for summary judgment, to which the Commissioner filed an opposition. (Pl.'s Mot. for Summ. J., Dkt. No. 15; Commissioner's Opp'n to Mot. for Summ. J., Dkt. No. 17.)

For the reasons stated below, the court grants plaintiff's motion for summary judgment in part and remands this matter to the Commissioner for further proceedings. Specifically, the undersigned concludes that on the present record, the administrative law judge ("ALJ") and the Appeals Council of the Office of Disability Adjudication and Review ("Appeals Council") did not comply with 42 U.S.C. § 1382c(a)(3)(I), as interpreted in Howard ex. rel. Wolff v. Barnhart, 341 F.3d 1006 (9th Cir. 2003), and Social Security Acquiescence Ruling 04-1(9), 69 Fed. Reg. 22,578-03, 2004 WL 875081 (Apr. 26, 2004) ("Acquiescence Ruling 04-1(9)"). Although this case presents a close call, the record does not support the conclusion that the ALJ and the Appeals Council made a reasonable effort to obtain a case evaluation by a pediatrician or other appropriate specialist that was based on the entire record. Because this legal error warrants remanding this matter for further proceedings, the undersigned does not reach the remainder of plaintiff's arguments seeking reversal of the ALJ's and Appeals Council's decisions.

I. BACKGROUND*fn2

In February 2006, plaintiff filed an application for SSI on behalf of her minor daughter, alleging a disability onset date October 2, 1998.*fn3 (Admin. Tr. ("AT") 101, 112, 124.) The application was made on the basis of A.P.'s alleged mental impairments consisting of social anxiety and social phobias, and the physical manifestations thereof. The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 79-84, 89-92.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted a hearing on January 16, 2008. (AT 45-78, 93.) Plaintiff and her daughter, who were represented by counsel at the hearing, testified.

In a decision dated February 22, 2008, the ALJ denied plaintiff's application, finding that A.P. was not disabled within the meaning of the Act. (See AT 9-22.) Plaintiff administratively appealed the ALJ's decision and submitted additional exhibits, including a report from James Margolis, M.D. dated March 5, 2008, which the Appeals Counsel ordered to be made part of the record. (AT 4.) After considering the ALJ's decision and the additional evidence, the Appeals Council denied plaintiff's request for review without any substantive explanation. (AT 1-3.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required three-step evaluation attendant to applications for SSI benefits by individuals under the age of 18 and concluded that A.P. was not disabled within the meaning of the Act.*fn4 At step one, the ALJ found that A.P. was a school-age child who had not engaged in substantial gainful activity at any time relevant to the decision. (AT 12.) At step two, the ALJ concluded that A.P. had the following "severe" impairment: "Social Phobia, rule out Obsessive-Compulsive Disorder." (Id.) At step three, the ALJ determined that A.P. did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the applicable regulations. (AT 13.)

Because the ALJ concluded that A.P. did not have an impairment or combination of impairments that met or medically equaled a listing, the ALJ analyzed whether A.P. had an impairment or combination of impairments that functionally equaled a listing. (See AT 13-22.) In regards to the six domains relevant to the inquiry, the ALJ found that A.P.: (1) had "no limitation" in acquiring and using information, attending and completing tasks, and moving about and manipulating objects; (2) had "marked limitation" in interacting and relating with others; and (3) had "less than marked limitation" in the ability to care for herself and in health and physical well-being. (See AT 16-22). Because the ALJ found that A.P. did not have "marked" limitations in two domains or an "extreme" limitation in one domain, he found that A.P.'s mental impairment did not functionally equal a listing. Accordingly, the ALJ found that A.P. was not disabled within the meaning of the Act. (See AT 22.)

II. DISCUSSION

Plaintiff's main argument is that the ALJ's evaluation of A.P.'s claim for SSI benefits does not comply with the requirements of 42 U.S.C. § 1382c(a)(3)(I), as interpreted in Howard, 341 F.3d 1006, and Acquiescence Ruling 04-1(9). In relevant part, 42 U.S.C. § 1382c(a)(3)(I) provides:

In making any determination under this subchapter with respect to the disability of an individual who has not attained the age of 18 years . . . , the Commissioner of Social Security shall make reasonable efforts to ensure that a qualified pediatrician or other individual who specializes in a field of medicine appropriate to the disability of the individual (as determined by the Commissioner of Social Security) evaluates the case of such individual.

In Howard, the Ninth Circuit Court of Appeals interpreted Section 1382c(a)(3)(I) in the context of an appeal of the denial of SSI benefits to a minor. See Howard, 341 F.3d at 1013-14. The record in Howard included evaluations, reports, and records of myriad treating and examining professionals and, as a result, the ALJ denied the claimant's multiple requests that a pediatrician or other similar specialist appear at the hearing and evaluate the minor's case. The district court affirmed the ALJ's decision on the basis of the well-developed record.

Although the Ninth Circuit Court of Appeals concluded that substantial evidence supported the ALJ's decision, it reversed the decision of the ALJ based on a finding of legal error and remanded the matter for further development of the record. See Howard, 341 F.3d at 1014. In reversing and remanding, the Court of Appeals interpreted 42 U.S.C. ยง 1382c(a)(3)(I) "to mean that the ALJ is required to make a reasonable effort to obtain a case evaluation, based on the record in its entirety, from a pediatrician or other appropriate specialist, rather than simply constructing his own case evaluation from the evidence in the record." Howard, 341 F.3d at 1014. Acknowledging that the record contained numerous experts' reports, the Court of Appeals further stated: "There is a distinction, however, between having an expert evaluate a claimant with respect to that expert's particular specialty, and having an expert evaluate a claimant's case in its entirety, considering all of the medical records and determining whether those indicate that the claimant is disabled within the meaning of the Social Security Act." Id. at 1014 ...


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