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T.S., By and Through Her Guardian Ad Litem, Jenny Photsikhip v. Commissioner of Social Security Administration

March 27, 2012

T.S., BY AND THROUGH HER GUARDIAN AD LITEM, JENNY PHOTSIKHIP, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

ORDER

Plaintiff Jenny Photsikhip, who filed an application for social security benefits on behalf of her minor daughter T.S.*fn1 and through counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying an application for Supplemental Security Income ("SSI") child benefits under Title XVI of the Social Security Act ("Act").*fn2 Presently before the court is plaintiff's motion for summary judgment, to which the Commissioner filed an opposition and cross-motion for summary judgment. (Pl.'s Mot. for Summ. J., Dkt. No. 15; Def.'s Opp'n to Mot. for Summ. J., Dkt. No. 19.)

For the reasons stated below, the undersigned denies plaintiff's motion for summary judgment and grants defendant's cross-motion for summary judgment.

I. BACKGROUND*fn3 A. Procedural History

On July 17, 2007, plaintiff filed an application for SSI on behalf of T.S., alleging a disability onset date of January 18, 2007, the day T.S. was born. (Admin. Record ("AR") 91-97.) The application was made on the basis of T.S.'s impairments of "Erb's palsy" and "right brachial plexus." (Pl.'s Mot. for Summ. J. at 3; AR 16.)

The Social Security Administration denied plaintiff's application initially, upon reconsideration, and after a hearing by an Administrative Law Judge ("ALJ"). (AR 62, 67, 13-24, 25-59.) Plaintiff and her daughter appeared at the hearing and were represented by counsel, and plaintiff testified at the hearing. In a decision dated October 6, 2009, the ALJ denied plaintiff's application, finding that T.S. was not disabled within the meaning of the Act. (See AR 13-24.) This became the final decision of the Commissioner when the Appeals Council denied review. (AR 1-4.) 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 T.S. was not disabled within the meaning of the Act.*fn4 At step one, the ALJ found that T.S. was currently an "older infant" who had not engaged in substantial gainful activity at any time relevant to the decision. (AR 16.) At step two, the ALJ concluded that T.S. had the following "severe" impairments: "right brachial plexus birth injury" and "Erb's palsy." (Id.)

At step three, the ALJ determined that T.S. did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the applicable regulations. (AR 17-23.) Because the ALJ concluded that T.S. did not have an impairment or combination of impairments that met or medically equaled a listing, the ALJ analyzed whether T.S. had an impairment or combination of impairments that functionally equaled a listing. (Id.) In regards to the six domains relevant to the inquiry, the ALJ found that T.S.: (1) had no limitation in acquiring and using information; (2) "less than marked" limitation in attending and completing tasks; (3) no limitation in interacting and relating with others; (4) "less than marked" limitation in moving about and manipulating objects; (5) "less than marked" limitation in the ability to care for herself; and (6) no limitation in health and physical well-being. (See id.) Because the ALJ found that T.S. did not have "marked" limitations in two domains or an "extreme" limitation in one domain, he found that T.S.'s impairments do not functionally equal a listing. Accordingly, the ALJ found that T.S. was not disabled within the meaning of the Act. (AR 23.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "To determine whether substantial evidence supports the ALJ's decision, [a court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion." Andrews, 53 F.3d at 1039. "If additional proceedings can remedy defects in the original administrative proceedings, a social security case should be remanded." Lewin v. Schweiker, 654 F.2d 631, 637 (9th Cir. 1981). However, the court's review is constrained to the reasons asserted by the ALJ in the ALJ's decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ("We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely."); accord Tommasetti, 533 F.3d at 1039 n.2 (declining to review reasons provided by the district court in support of the ALJ's credibility decision that were not "expressly relied on" by the ALJ during the administrative proceedings); accord Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (noting that the Court "cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision"); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) ("[W]e are wary of speculating about the basis of the ALJ's conclusion -- especially when his opinion indicates that the conclusion may have been based exclusively upon an improper reason."); Barbato v. Comm'r of Soc. Sec. Admin., 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 1996) (remand is appropriate when a decision does not adequately explain how a decision was reached, "[a]nd that is so even if [the Commissioner] can offer proper post hoc explanations for such unexplained conclusions," because "the Commissioner's decision must stand or fall with the reasons set forth in the ALJ's decision, as adopted by the Appeals Council") (citation omitted).

III. DISCUSSION

Plaintiff raises one argument on summary judgment, namely, that at step three, the ALJ applied "incorrect legal standards" in evaluating whether T.S.'s "brachial plexus" impairment meets the requirements of Listing 101.08.*fn5 (Pl.'s Mot. for Summ. J. at 6.)

An ALJ determines whether "a claimant's impairment meets or equals an impairment listed in Appendix 1 to Subpart P of Regulations No. 4." Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). The Listing of Impairments describes specific impairments of each of the major body systems "which are considered severe enough to prevent a person from doing any gainful activity." Id. (citing 20 C.F.R. § 404.1525.) If a claimant meets or equals a listed impairment he or she will be found disabled at this step without further inquiry. Id. (citing 20 C.F.R. § 404.1520(d).) A claimant bears the burden of proving that his impairments satisfy all the criteria of a particular listing. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995) ("The claimant bears the burden of establishing a prima facie case of disability. [Citation.] This burden requires the claimant to make out a case both that she has an impairment listed in the regulations, and that she has met the duration requirement.") (internal citations omitted); Sullivan v. Zebley, 493 U.S. 521, 530 (1990) ("[f]or a claimant to show that his impairment matches a listing, it must meet all ...


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