United States District Court, C.D. California, Eastern Division
January 28, 2015
VERONICA ESTRADA, on behalf of M.A.A., a minor, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
For Veronica Estrada, on behalf of M. A. A., a minor, Plaintiff: William M Kuntz, LEAD ATTORNEY, William M Kuntz PLC, Riverside, CA.
For Carolyn W Colvin, Commissioner of Social Security Administration, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Cynthia B De Nardi, LEAD ATTORNEY, SAUSA - Office of the U.S. Attorney, San Francisco, CA.
DECISION AND ORDER
CARLA M. WOEHRLE, United States Magistrate Judge.
On October 21, 2013, Veronica Estrada filed a Complaint seeking review of the Commissioner's denial of an application for supplemental security income she had filed on behalf of her minor-aged daughter, M.A.A. (" Plaintiff"). Thereafter, the parties filed a Consent to Proceed Before United States Magistrate Judge Carla Woehrle. On April 28, 2014, Defendant filed an Answer to the Complaint. On July 24, 2014, the parties filed their Joint Stipulation (" Joint Stip.").
As discussed below, the Court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.
On June 18, 2010, Ms. Estrada filed an application for supplemental security income on behalf of Plaintiff. (Administrative Record [" AR" ] at 12, 142-49.) The application alleged that, beginning on June 1, 2010, Plaintiff was disabled because of bipolar disorder and attention deficit hyperactivity disorder (" ADHD"). (AR at 84.)
The Commissioner denied the application initially and on reconsideration. (AR at 82-83.) Ms. Estrada requested an administrative hearing, which was held by an Administrative Law Judge (" ALJ") on February 16, 2012. (AR at 48.) Plaintiff and Ms. Estrada appeared at the hearing with counsel, and they both gave testimony. (AR at 49.)
The ALJ issued an unfavorable decision on May 18, 2012. (AR at 12-23.) The ALJ found that Plaintiff's bipolar disorder, ADHD, and borderline intellectual functioning were " severe" impairments, but that she did not have an impairment or combination of impairments that met, medically equaled, or functionally equaled the requirements of a listed impairment. (AR at 15.) In particular, the ALJ found that Plaintiff did not functionally equal the requirements of a listed impairment because Plaintiff either had no limitation or less than a marked limitation in six domains of functioning.  (AR at 18-23.) The ALJ therefore concluded that Plaintiff was not disabled as defined by the Social Security Act. (AR at 23.)
Ms. Estrada requested review of the ALJ's decision by the Appeals Council. (AR at 7-8.) On July 17, 2013, the Appeals Council denied the request for review. (AR at 1-3.)
The parties' Joint Stipulation sets out the following disputed issues:
1. Whether the ALJ properly evaluated Plaintiff's conditions under Listing 112.05(D) (Intellectual Disability);
2. Whether the ALJ properly considered the testimony of Ms. Estrada.
The Court finds that both issues warrant reversal and remand for further proceedings.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means " more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). In other words, it is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401.
In determining whether substantial evidence supports the ALJ's findings, the Court must review the record as a whole and consider " both the evidence that supports and the evidence that detracts from the Commissioner's conclusion[s]." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). " If the evidence can reasonably support either affirming or reversing, " the Court " may not substitute its judgment" for that of the ALJ, and the ALJ's decision must be upheld. Id. at 720-21; see also Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
A. The Sequential Evaluation for Childhood Disability
To be eligible for disability benefits, a child under the age of 18 must have a medically determinable physical or mental impairment or combination of impairments " that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.906. Childhood disability claims are evaluated with a three-step test. 20 C.F.R. § 416.924.
At step one, the ALJ determines whether the child is engaging in substantial gainful activity. If not, the ALJ will proceed to the next step.
At step two, the ALJ determines whether the child has a medically determinable impairment or combination of impairments that is " severe." If so, the ALJ will proceed to the next step.
At step three, the ALJ determines whether the child's impairment or combination of impairments meets, medically equals, or functionally equals the severity of a listed impairment defined by 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Commissioner's regulations. If so, and if the listed impairment meets the durational requirement, the ALJ will find that the child is disabled.
B. The ALJ's Step Three Determination
In Issue One, Plaintiff contends that the ALJ failed to properly consider at step three whether Plaintiff's conditions met the requirements of Listing 112.05(D) (Intellectual Disability). (Joint Stip. at 4-15.)
The Listings define childhood intellectual disability as " significantly subaverage general intellectual functioning with deficits in adaptive functioning." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.05. In order to satisfy subsection D of Listing 112.05, a child must have (1) a valid verbal, performance, or full scale IQ score of 60 to 70, (2) and a physical or other mental impairment imposing an additional and significant limitation of function. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.05(D). An impairment imposes an additional and significant limitation of function, for purposes of Listing 112.05(D), if it is a " severe" impairment. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(A).
Here, the ALJ made no specific findings under Listing 112.05(D). However, the record includes evidence that arguably supported both of the requirements of that listing. Plaintiff was diagnosed with two mental impairments apart from her borderline intellectual functioning -- bipolar disorder and ADHD -- that the ALJ classified as " severe" and therefore imposed an additional and significant limitation of function. (AR at 15.) Moreover, Plaintiff had a full scale IQ score of 66. (AR at 311.) Although the probative value of the IQ score may have been called into question by a comment from the psychologist who administered the IQ test that Plaintiff did " not at all subjectively impress as developmentally delayed" (AR at 311), this ambiguity was not properly resolved by the ALJ.
In light of this evidence and the critical importance of Listing 112.05(D) to Plaintiff's disability application, the ALJ erred by failing to make any specific findings under that listing. See Scott ex rel. Scott v. Astrue, 529 F.3d 818, 822-23 (8th Cir. 2008) (reversing where nothing in the ALJ's decision indicated proper consideration of Listing 112.05(D) despite ambiguities in the record on that issue); Scott v. Barnhart, 297 F.3d 589, 595-96 (7th Cir. 2002) (same where ALJ failed to properly consider Listing 112.05, which was the listing critical to claimant's case); Washington v. Colvin, 2013 WL 4517911, at *6-*10 (E.D. Cal. Aug. 26, 2013)(same where ALJ failed to expressly consider Listing 112.05(D) despite presence of evidence that at least on its face supported that listing); see generally Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (reversal is required where an ALJ fails to adequately explain basis of his step three determination); Frost v. Barnhart, 314 F.3d 359, 369 (9th Cir. 2002) (same).
In sum, the Court finds that reversal is warranted with respect to the ALJ's step three determination.
C. The ALJ's Credibility Determination as to Plaintiff's Mother
In Issue Two, Plaintiff contends that the ALJ failed to properly consider the testimony of Plaintiff's mother, Ms. Estrada. (Joint Stip. at 15-20.)
Testimony from lay witnesses about a claimant's symptoms and abilities is competent evidence and cannot be disregarded by an ALJ unless he provides specific reasons germane to that testimony. See, e.g., Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). An ALJ evaluating a claim of childhood disability " must give full consideration to the testimony of friends and family members." See Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000) (citing Smolen, 80 F.3d at 1288; and Dodrill, 12 F.3d at 919).
During Plaintiff's hearing, Ms. Estrada testified that beginning in 2010 (when Plaintiff was thirteen years old), Plaintiff started hitting herself and acting aggressively toward others. (AR at 65-66.) Ms. Estrada also testified that Plaintiff showed little improvement with medication, received " straight Fs" in school, was expelled from the seventh grade, threatened to cut off her hands, and was psychiatrically hospitalized. (AR at 70-71, 74-75, 77.)
In addition to testifying at the hearing, Ms. Estrada completed a Child Function Report describing Plaintiff's abilities. (AR at 156-63.) In the report, Ms. Estrada stated that Plaintiff needed glasses; had trouble talking, communicating, paying attention, and sticking to tasks; was limited in her physical abilities and behavior with others; and had mood swings and imaginary friends. (AR 157-60, 163.)
The ALJ found that Ms. Estrada's allegations concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms were " less than fully credible" for three reasons. (AR at 16.) The Court finds that none of the three reasons for rejecting Ms. Estrada's testimony was germane to that testimony.
First, the ALJ found that since Ms. Estrada was not a medical professional, her testimony was far less persuasive than medical opinion evidence. (AR at 16.) This generic reason was not germane to Ms. Estrada's testimony because a lay witness's lack of medical training does not disqualify her from providing a probative opinion about how a claimant's condition affects her functional abilities. See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (a lay person is not disqualified from rendering an opinion about a claimant's abilities merely because the person is not a vocational or medical expert); 20 C.F.R. § 416.913(d)(4) (evidence provided by lay witnesses may be used to show the severity of a claimant's impairments and how they affect her abilities).
Second, the ALJ found that Ms. Estrada was " not an unbiased" witness because she had an emotional motivation to support Plaintiff and a financial interest in the receipt of benefits. (AR at 16.) However, such a reason in the abstract may not be applied indiscriminately to discredit a family member's testimony. Rather, an ALJ must support such a reason with concrete evidence of the family member's bias, improper motivation, or financial interest. The ALJ did not do so here. See Valentine v. Comm'r of Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (evidence that a spouse had exaggerated might suffice to reject her testimony, but the fact that she was an interested party " in the abstract" would not); Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (mother's alleged bias was not a germane reason even though she was the claimant's sole source of support); Smolen, 80 F.3d at 1289 (wholesale rejection of family members' testimony as biased did not qualify as a germane reason).
Third, the ALJ found that Ms. Estrada's statements were " not supported by the clinical or diagnostic medical evidence that [was] discussed more thoroughly below" in another part of the ALJs' decision. (AR at 16.) In general, an ALJ may reject lay witness testimony by citing inconsistencies between the testimony and the medical evidence. See Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis, 236 F.3d at 511. Here, however, the medical evidence cited by the ALJ that supposedly demonstrated such inconsistencies did not in fact undermine Ms. Estrada's testimony. Rather, Ms. Estrada's testimony was consistent with much of that medical evidence, which reflected that Plaintiff was psychiatrically hospitalized; was diagnosed with bipolar disorder, ADHD, and psychosis not otherwise specified; received a full scale IQ score of 66; and received a Global Assessment of Functioning score of 25, which indicated the presence of delusions or hallucinations, serious impairment in communication or judgment, or an inability to function in almost all areas.
In sum, the Court finds that reversal is warranted because the ALJ failed to provide any legally sufficient reasons to reject Ms. Estrada's testimony.
D. Remand Is Required to Remedy the Defects in the ALJ's Decision
The decision whether to remand for further proceedings is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179. However, where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. (decision whether to remand for further proceedings turns upon their likely utility).
Here, Plaintiff's entitlement to benefits is not clear from the existing record. Although the existing record included evidence that appeared to show that Plaintiff met the requirements of a listed impairment, some of that evidence was ambiguous. Moreover, the record did not clearly show that Plaintiff's condition satisfied the durational requirement. See 20 C.F.R. § 416.906. Accordingly, because there remain outstanding issues to be resolved, remand for further proceedings is appropriate.
Accordingly, IT IS ORDERED that:
1. The decision of the Commissioner is REVERSED.
2. This action is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.
3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.
IT IS ADJUDGED that this action is remanded to defendant for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) and consistent with the accompanying Decision and Order.