United States District Court, E.D. California
V.G., by and through her guardian ad litem, ANGELICA GUZMAN, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
ORDER REMANDING THE ACTION PURSUANT TO SENTENCE FOUR
OF 42 U.S.C. § 405(g) ORDER DIRECTING ENTRY OF JUDGMENT
IN FAVOR OF PLAINTIFF V.G. AND AGAINST DEFENDANT ANDREW M.
SAUL, COMMISSIONER OF SOCIAL SECURITY
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
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).
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.
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).
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).
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
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.
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.
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)
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)
Relevant Medical Opinions
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)
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)
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.
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,
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 and recommended she receive
individual therapy. (Id.)
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)
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