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V.G. v. Saul

United States District Court, E.D. California

September 23, 2019

V.G., by and through her guardian ad litem, ANGELICA GUZMAN, Plaintiff,
ANDREW M. SAUL[1], Commissioner of Social Security, Defendant.



         V.G., by and through her guardian ad litem Angelica Guzman, asserts she is entitled to benefits under the Social Security Act. Plaintiff argues the administrative law judge erred in evaluating the record and seeks judicial review of the decision denying benefits. Because the ALJ erred in addressing the lay witness testimony and rejecting the medical opinions of examining physicians, the matter is REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).


         In September 2014, an application for benefits was filed on behalf of Plaintiff, alleging disability beginning August 1, 2011, due to “a speech or language impairment” and “a short time span to focus on things.” (Doc. 11-7 at 4; Doc. 11-5 at 3) The Social Security Administration denied the application at the initial level and upon reconsideration. (See generally Doc. 11-5) After requesting a hearing an administrative hearing, Plaintiff and her mother testified before an ALJ on April 6, 2017. (Doc. 11-4 at 5) The ALJ determined she was not disabled and issued an order on July 5, 2017. (Id. at 5-26) When the Appeals Council denied a request for review on April 23, 2018 (Doc. 11-3 at 2-5), the ALJ’s findings became the final decision of the Commissioner of Social Security.


         District courts have a limited scope of judicial review for disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, such as whether a claimant was disabled, the Court must determine whether the Commissioner’s decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ’s determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

         Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole must be considered, because “[t]he court must consider both evidence that supports and evidence that detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).


         To qualify for benefits under the Social Security Act, a minor claimant must demonstrate he “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). The burden of proof is on a claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). Once a claimant establishes a prima facie case of disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). DETERMINATION OF DISABILITY

         To achieve uniform decisions, the Commissioner established a sequential three-step process for evaluating a minor claimant’s alleged disability. 20 C.F.R. § 416.924(e). The process requires the ALJ to determine whether the child (1) engaged in substantial gainful activity and (2) has a severe impairments or combination of impairments (3) that met or equal one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1. Id.

         The ALJ must evaluate how the child’s limitations affect six broad areas of functioning called “domains” to determine whether a child’s impairments functionally equal a Listing. See 20 C.F.R. § 416.926a. The domains are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). In evaluating these domains, an ALJ will consider how well the child “can initiate and sustain activities, ” how much extra help is needed, “the effects of structured or supportive settings, ” how the child functions in school, and the “effects of ... medications or other treatment.” 20 C.F.R. § 416.926a(a). When “marked” limitations exist in two domains of functioning, or an “extreme” limitation exists in one domain, the minor claimant meets the Listing requirements. Id.

         A. Teacher Assessments

         Susan Bacorn, Plaintiff’s kindergarten teacher, completed a “Caregiver-Teacher Report Form” and “Teacher Questionnaire” in October 2014. (Doc. 11-8 at 62-79) Ms. Bacorn noted she had known Plaintiff for seven weeks. (Id. at 67) Ms. Bacorn observed that Plaintiff was “very often” easily distracted by extraneous stimuli and talked excessively. (Id. at 64) She indicated Plaintiff “often” had difficulty sustaining attention, would leave her seat when expected to remain in it, and interrupted others. (Id.) Ms. Bacorn opined Plaintiff’s classroom performance was “somewhat of a problem” when it came to following directions, disrupting class, completing assignments, and Plaintiff’s organizational skills. (Id. at 65) Ms. Bacorn believed Plaintiff had either “no problem” or a “slight problem” with the acquiring and using information domain, noting Plaintiff “had a problem at times recalling and applying previously learned materials – but not more than an average student.” (Id. at 68) With attending and completing tasks, Ms. Bacorn noted Plaintiff would “lose focus at times, but respond[ed] to redirection.” (Id.) In addition, she observed that Plaintiff had no more than a slight problem with most areas of interacting and relating with others, though she identified an “obvious problem” with taking turns in conversation. (Id. at 70) Likewise, Ms. Bacorn believed Plaintiff had no more than slight problems with caring for herself, with the only issues being lack of patience when necessary, using coping skills to meet the demands of school, and knowing when to ask for help. (Id. at 72) She indicated Plaintiff did not have any problems with moving about and manipulating objects, including demonstrating straight, coordination, and dexterity. (Id. at 71)

         In March 2017, Kristy Kennedy, Plaintiff’s second grade teacher, completed a “Teacher Questionnaire” addressing the domains for minors. (Doc. 11-11 at 5-12) Ms. Kennedy noted she saw Plaintiff “6 hours a day[, ] 5 days a week” and she had known Plaintiff for eight months. (Id. at 5) She indicated Plaintiff had “slight” problems with several activities related to acquiring and using information, including reading and comprehending written material, comprehending and doing math problems, providing organized oral explanations, expressing ideas in writing, learning new material, recalling previously-learned material, and applying problem solving skills. (Id. at 6) Ms. Kennedy indicated Plaintiff had no more than slight problems with activities related to attending and completing tasks, as well as interacting and relating with others. (Id. at 7-8) According to Ms. Kennedy, Plaintiff did not have any problems with moving about and manipulating objects, and Plaintiff no had no problems caring for herself. (Id. at 9-10) She believed Plaintiff’s “behavior improved with [a] new prescription.” (Id. at 11)

         B. Relevant Medical Opinions

         Dr. Dan Funkenstein reviewed available medical records, including therapy and education records, and completed a disability evaluation related to Plaintiff’s application for benefits at the initial level on October 24, 2014. (Doc. 11-5 at 7-10) Dr. Funkenstein noted the application was for a speech and language impairment but review of the record revealed asthma and “some regression and oppositional behaviors” after her reuniting with her mother, who was incarcerated for four months. (Id. at 8, 9) He observed that Plaintiff was receiving speech and language therapy through Kaiser and her school, and there was “reported improvement.” (Id. at 11) In addition, Dr. Funkenstein found the record “indicate[d] more cooperative and improving impulse control.” (Id.) Dr. Funkenstein opined Plaintiff had “Less Than Marked” limitations with the following domains: acquiring and using information, attending and completing tasks, interacting and relating with others, and health / physical well-being. (Id. at 9-10) He determined Plaintiff had no limitations with the domains of caring for herself and moving about / manipulating objects. (Id. at 10)

         In February 2015, upon reconsideration of Plaintiff’s application, Dr. Johnson reviewed the record from a psychiatry standpoint and Dr. Vaghaiwalla reviewed the record from a physical standpoint. (Doc. 11-5 at 23-24) Dr. Vaghaiwalla opined the medical record was consistent “with a severe impairment but not at [a] listing level or functional equivalent.” (Id. at 24) Dr. Johnson also opined Plaintiff did not meet or functionally equal a listing level. (Id.) The physicians opined Plaintiff had “Less Than Marked” limitations with acquiring and using information, attending and completing tasks, interacting and relating with others, and health and physical well-being. (Id. at 23-24) According to Drs. Vaghaiwalla and Johnson, Plaintiff also had no limitations with moving about/ manipulating objects and caring for herself. (Id. at 24)

         Dr. Barbara Harrington performed a psychological evaluation on March 2, 2017, when Plaintiff was in the second grade. (Doc. 11-24 at 60, 61) The evaluation included administration of the Wechsler Intelligence Scale for Children IV (“WISC-IV”) and Vineland Adaptive Behavior Scales (“VABS-II”). (Id. at 60) Dr. Harrington and Dr. Mark Popper observed:

Patient’s mood was neutral with flat affect. She exhibited a lack of social and emotional reciprocity. Her eye contact was poor. Her speech was normal in terms of volume, speed, and articulation. Her quantity of speech was minimal. She moved about quickly and was fidgety in the mental status interview. Patient’s mother attempted to restrain Patient’s behavior frequently. Patient demonstrated stereotyped and idiosyncratic sounds while doing the Coding and Symbol Search subtests.

(Id. at 60) Drs. Popper and Harrington determined Plaintiff “was oriented to person, however not to place, time, and situation.” (Id.) With the WISC-IV, the physicians determined Plaintiff had a full-scale IQ of 102, verbal comprehension score of 99, perceptual reasoning score of 100, working memory score of 88, and processing speed score of 118. (Id. at 62) Drs. Popper and Harrington explained the full-scale score was average, working memory score was low average, and Plaintiff’s processing speed was high average. (Id.)

         With the VABS-II, Plaintiff scored in the low adaptive level with communication, daily living skills, socialization, and adaptive behavior composite scores. (Doc. 11-24 at 63) Drs. Popper and Harrington found Plaintiff’s maladaptive behavior index scores were clinically significant, explaining:

Among the Maladaptive Behavior Critical Items were several indicators of Autism including: 1) Rocks Back and forth repeatedly, 2) Is unusually fearful of ordinary sounds, objects or situations, 3) Is obsessed with objects or activities, 4) Has strange habits (makes repetitive noises, odd hand movements), 5) Consistently prefers objects over people, 6) Uses bizarre speech, 7) Is unaware of what is happening around her. In addition, Patient has a tactile sensitivity to soap and shampoo, has speech problems and exhibits a lack of emotional and social reciprocity.

(Id. at 64) Dr. Harrington and Dr. Hopper gave Plaintiff a GAF score of 50[2] and recommended she receive individual therapy. (Id.)

         Dr. David Walsh testified a medical expert at the administrative hearing on April 6, 2017. (Doc. 11-4 at 35) Dr. Walsh indicated that he reviewed Plaintiff’s medical records and educational records. (Id. at 48) He observed Plaintiff was treated for ADHD, language delay, and an adjustment disorder. (Id. at 51-52) In addition, Dr. Walsh noted psychologist had diagnosed Plaintiff with “atypical autism.” (Id. at 52) Reviewing the six domains for children, he opined Plaintiff had “less than marked” limitation with acquiring and using information, based upon her IQ scores and the questionnaires completed by Plaintiff’s teachers. (Id. at 55-56) With the second domain of attending and completing tasks, Dr. Walsh opined Plaintiff had “less than marked” issues because she had “some skills as much as any other kid her age, but at the same time she does require prompts and a little more assistance to get it done.” (Id. at 57) Dr. Walsh testified Plaintiff had “less than marked” limits with the “social” and “caring for oneself” domains, because she had “maintained herself in a general education classroom, ” despite “some impulsivity, ” attention problems, and frustration. (Id. at 57-58, 59) He believed Plaintiff had “no limitation” with moving about and relating to objects “based on medical evidence from… neurological screenings.” (Id. at 58) Dr. Walsh declined to give an opinion on Plaintiff’s health and physical well-being, reporting the physical issues, speech and language impairments were “all out of [his] domain.” (Id. at 59)

         On April 25, 2017, after the administrative hearing, Drs. Popper and Harrington completed interrogatories regarding Plaintiff’s level of impairment with the six domains. (Doc. 11-26 at 78-80) According to Drs. Popper and Harrington, Plaintiff had no impairment with moving about and manipulating objects. (Id. at 79) They indicated she had moderate limitation with the first and sixth domains of acquiring and using information, and her health and physical well-being. (Id. at 78-79) Drs. Popper and Harrington opined Plaintiff had marked limitations with the third and fifth domains addressing her ability to interact, relate with others, and care for herself. (Id. a 79) Finally, they concluded Plaintiff had an extreme impairment in the second domain of attending and completing tasks, which addressed Plaintiff’s “level of alertness, ability to work at an appropriate pace, allay impulses, and initiate, sustain and change focus.” (Id. at 78)

         C. Lay ...

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