Ana L. Donato v. Carolyn W. Colvin

Filing 25

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner's decision; and The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case. (wr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 2:16-CV-05024 (VEB)
ANA L. DONATO, on behalf of SPD,
a Minor Child,
DECISION AND ORDER
Plaintiff,

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vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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I. INTRODUCTION
In June of 2014, Plaintiff Ana Donato, the mother and natural guardian of
SPD (“Claimant”), filed an application on Claimant’s behalf for Supplemental

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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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Security Income (“SSI”) benefits under the Social Security Act. The Commissioner

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of Social Security denied the application.1

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Plaintiff, represented by Irene Ruzin, Esq., commenced this action seeking

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judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§

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405 (g) and 1383 (c)(3). The parties have consented to the jurisdiction of a United

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States Magistrate Judge. (Docket No. 12, 14).

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On December 6, 2016, this case was referred to the undersigned pursuant to
28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 20).

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II. BACKGROUND

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The procedural history may be summarized as follows:

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Plaintiff is the mother of Claimant, a minor child. On June 24, 2014, Plaintiff

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filed an application for SSI benefits on Claimant’s behalf, alleging disability

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beginning March 29, 2001. (T at 115-23).2 The application was denied initially and

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Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). On

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February 3, 2016, a hearing was held before ALJ James Delphey. (T at 31).

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Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant
in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
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 On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The

 Citations to (“T”) refer to the administrative record at Docket No. 17.
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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Claimant and Plaintiff appeared with an attorney. (T at 31). Claimant testified (T at

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34-48), as did Plaintiff. (T at 48-63).

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On February 24, 2016, the ALJ issued a written decision denying the

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application for benefits and finding that Claimant was not disabled within the

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meaning of the Social Security Act. (T at 12-30). The ALJ’s decision became the

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Commissioner’s final decision on June 16, 2016, when the Social Security Appeals

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Council denied Plaintiff’s request for review. (T at 1-6).

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On July 8, 2016, Plaintiff, acting by and through her attorney and on

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Claimant’s behalf, commenced this action by filing a Complaint in the United States

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District Court for the Central District of California. (Docket No. 1). The

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Commissioner interposed an Answer on October 24, 2016. (Docket No. 16).

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The parties filed a Joint Stipulation on April 14, 2017. (Docket No. 24).

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After

reviewing

the

record,

pleadings,

and

Joint

Stipulation,

the

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Commissioner’s motion is granted, Plaintiff’s motion is denied, and this case is

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dismissed.

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III. DISCUSSION
A.

Sequential Evaluation Process

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An individual under the age of eighteen (18) is disabled, and thus eligible for

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SSI benefits, if he or she has a medically determinable physical or mental
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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impairment that results in marked and severe functional limitations, and which can

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be expected to result in death or which has lasted or can be expected to last for a

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continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i).

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However, that definitional provision excludes from coverage any “individual under

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the age of [eighteen] who engages in substantial gainful activity....” 42 U.S.C. §

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1382c(a)(3)(C)(ii).

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By regulation, the agency has prescribed a three-step evaluative process to be

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employed in determining whether a child can meet the statutory definition of

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disability. 20 C.F.R. § 416.924; see generally Meredith v. Astrue, No. CV-09-0384,

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2011 U.S. Dist. LEXIS 37363, at *3 (E.D.Wa. April 5, 2011).

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The first step of the test, which bears some similarity to the familiar five-step

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analysis employed in adult disability cases, requires a determination of whether the

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child has engaged in substantial gainful activity. 20 C .F.R. § 416.924(b). If so, then

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both statutorily and by regulation the child is ineligible for SSI benefits. 42 U.S.C. §

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1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(b).

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If the claimant has not engaged in substantial gainful activity, the second step

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of the test requires an examination as to whether the child suffers from one or more

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medically determinable impairments that, either singly or in combination, are

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properly regarded as severe, in that they cause more than a minimal functional

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limitation. 20 C.F.R. § 416.924(c).
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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If the existence of a severe impairment is discerned, the agency must then

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determine, at the third step, whether the impairment meets or equals a presumptively

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disabling condition identified in the listing of impairments set forth under 20 C.F.R.

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Pt. 404, Subpt. P., App. 1 (the “Listings”). Id. Equivalence to a listing can be either

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medical or functional. 20 C.F.R. § 416.924(d). If an impairment is found to meet or

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qualify as medically or functionally equivalent to a listed disability, and the twelve-

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month durational requirement is satisfied, the claimant will be deemed disabled. 20

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C.F.R. § 416.924(d)(1).

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Analysis of functionality is informed by consideration of how a claimant

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functions in six main areas, commonly referred to as “domains.” 20 C.F.R. §

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416.926a(b)(1); Meredith, 2011 LEXIS 37363, at *4. The domains are described as

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“broad areas of functioning intended to capture all of what a child can or cannot do.”

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20 C.F.R. § 416.926a(b)(1). Those domains include: (i) acquiring and using

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information; (ii) attending and completing tasks; (iii) interacting and relating with

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others; (iv) moving about and manipulating objects; (v) caring for oneself; and (vi)

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health and physical well-being. 20 C.F.R. § 416.926a(b)(1).

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Functional equivalence is established in the event of a finding of an

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“extreme” limitation, meaning “more than marked,” in a single domain. 20 C.F.R. §

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416.926a(a); Meredith, 2011 LEXIS 37363, at *4. An “extreme limitation” is an

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impairment which “interferes very seriously with [the claimant's] ability to
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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independently

initiate,

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sustain,

or

complete

activities.”

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C.F.R.

§

416.926a(e)(3)(I).

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Alternatively, a finding of disability is warranted if a “marked” limitation is

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found in any two of the listed domains. 20 C.F.R. § 416.926a(a); Meredith, 2011

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LEXIS 37363, at *4. A “marked limitation” exists when the impairment “interferes

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seriously with [the claimant's] ability to independently initiate, sustain, or complete

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activities.” 20 C.F.R. § 416.926a(e)(2)(I). “A marked limitation may arise when

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several activities or functions are impaired, or even when only one is impaired, as

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long as the degree of limitation is such as to interfere seriously with the ability to

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function (based upon age-appropriate expectations) independently, appropriately,

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effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §

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112.00(C).

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B.

Standard of Review

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Congress has provided a limited scope of judicial review of a Commissioner’s

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decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision,

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made through an ALJ, when the determination is not based on legal error and is

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supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.

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1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s]

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determination that a plaintiff is not disabled will be upheld if the findings of fact are

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supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir.
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla,

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Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a

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preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989).

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Substantial evidence “means such evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

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(1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner]

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may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze,

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348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a

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whole, not just the evidence supporting the decision of the Commissioner. Weetman

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v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525,

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526 (9th Cir. 1980)).

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It is the role of the Commissioner, not this Court, to resolve conflicts in

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evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational

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interpretation, the Court may not substitute its judgment for that of the

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Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th

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Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be

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set aside if the proper legal standards were not applied in weighing the evidence and

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making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d

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432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the

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administrative findings, or if there is conflicting evidence that will support a finding
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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of either disability or nondisability, the finding of the Commissioner is conclusive.

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Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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C.

Commissioner’s Decision

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The ALJ noted that Claimant was born on March 29, 2001, and, as such, was

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an adolescent, as defined under 20 CFR § 416.962a (g)(2), on June 24, 2014 (the

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application date) and was an adolescent on February 24, 2016 (the date of the ALJ’s

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decision). (T at 18). At step one of the sequential evaluation, the ALJ found that

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Claimant had not engaged in substantial gainful activity since the application date.

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(T at 18). At step two, the ALJ determined that Claimant’s learning disability was

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an impairment considered “severe” under the Act. (Tr. 18).

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However, at step three, the ALJ concluded that Claimant did not have an

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impairment or combination of impairments that met or medically equaled one of the

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impairments set forth in the Listings. (T at 18). The ALJ also found that Claimant

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did not have an impairment or combination of impairments that functionally equaled

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the Listings. (T at 19). In particular, the ALJ determined that Claimant had less than

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a marked limitation in acquiring and using information, less than a marked limitation

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in attending and completing tasks, less than a marked limitation with respect to

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interacting and relating with others, no limitation as to moving about and

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manipulating objects, no limitation with regard to the ability to care for himself, and

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no limitation in health and physical well-being. (T at 23-27).
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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As such, the ALJ concluded that Claimant had not been disabled, as defined

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under the Act, from the application date through the date of the decision and was

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therefore not entitled to benefits. (Tr. 27). As noted above, the ALJ’s decision

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became the Commissioner’s final decision when the Appeals Council denied

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Plaintiff’s request for review. (Tr. 1-6).

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D.

Plaintiff’s Argument

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Plaintiff argues that the Commissioner’s decision should be reversed. In

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particular, she contends that the ALJ committed reversible error by concluding that

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Claimant’s impairments did not meet the requirements of Listing §112.05 (C) or (D).

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IV. ANALYSIS

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Listing § 112.05 relates to intellectual disability for children ages 3 to 18.

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Sub-paragraph C requires a “valid verbal, performance, or full scale IQ of 59 or

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less.” Sub-paragraph D requires a “valid verbal, performance, or full scale IQ of 60

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through 70 and a physical or other mental impairment imposing an additional and

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significant limitation of function.”

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In this case, Dr. Rebecca Holtzmann performed a psychological assessment on

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April 25, 2012, when Claimant was 11 years old. She diagnosed ADHD and mild

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mental retardation. (T at 338). She reported a verbal IQ of 53. (T at 340). On

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August 29, 2014, Dr. Banafse P. Sharokhi performed a consultative examination.
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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Claimant obtained a full-scale IQ score of 56 on testing administered by Dr.

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Sharokhi. (T at 316).

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extremely inconsistent effort on testing,” evidenced by “low motivation,

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carelessness, impulsivity, and aborting of subtests prematurely.” (T at 317). As

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such, Dr. Sharokhi opined that Claimant’s “cognitive abilities appear higher than

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shown on psychometric testing.” (T at 317).

However, Dr. Sharokhi reported that Claimant “exerted

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The ALJ discussed Dr. Holtzmann’s report, noting the verbal IQ score of 53,

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but finding the score “well outside the relevant period at issue” and, thus, not

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entitled to significant weight. (T at 18). It is indeed the case that an IQ score must

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be “current” for accurate assessment under Listing § 112.05 and IQ results obtained

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between ages 7 and 16 are only considered current for 2 years when the score is 40

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or above. 20 CFR § 404, Subpart P, App. 1, §112.00 D (10). Here, Dr. Holtzmann’s

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results were obtained in April of 2012, which is slightly more than 2 years prior to

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June 24, 2014, when Claimant’s application for benefits was filed. As such, while it

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is difficult to agree with the ALJ’s conclusion that Dr. Holztmann’s IQ score was

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“well outside” the relevant time period, it was, in any event, not “current” as of the

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application date. The ALJ was within his discretion to find the score invalid.

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Plaintiff argues that the ALJ erred by failing to consider the balance of Dr.

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Holtzmann’s findings, including those related to Claimant’s behavioral difficulties

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and, in particular, the diagnosis of ADHD. However, this Court finds the ALJ’s
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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consideration sufficient. The decision contains detailed discussion and findings

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regarding Claimant’s behavioral issues and the ALJ’s lack of specific reference to

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certain of Dr. Holtzmann’s conclusions or the ADHD diagnosis does not constitute

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reversible error. As discussed below, although Claimant certain had behavioral

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issues, the ALJ cited evidence that those issues were generally addressed effectively

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through special education supports and services.

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The ALJ determined that the IQ score of 56 obtained Dr. Sharokhi was not

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valid because of the concerns expressed by Dr. Sharokhi with regard to Claimant’s

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effort. (T at 18). In other words, the ALJ accepted Dr. Sharokhi’s conclusion that

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the IQ score was likely an underestimation of Claimant’s true cognitive abilities.

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This Court is obliged to give deference to the ALJ’s interpretation of the evidence.

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Under the circumstances, this Court cannot consider it unreasonable for the ALJ to

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have discounted the IQ score based upon concerns observed and noted by the

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examining doctor himself. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

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1999)(holding that if evidence reasonably supports the Commissioner’s decision, the

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reviewing court must uphold the decision and may not substitute its own judgment).

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In sum, this Court finds no reversible error with respect to the ALJ’s finding

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that the requirements of Listing § 112.05 (C) were not met. Although the record

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contains two IQ scores of 59 or less, the ALJ offered legally sufficient reasons for

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rejecting those scores and this Court is obliged to differ to those reasons.
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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Plaintiff also argues that the ALJ did not give adequate consideration as to

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whether Claimant met sub-paragraph (D) of the Listing, which requires a “valid

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verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental

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impairment imposing an additional and significant limitation of function.” This

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Court finds no error as to this aspect of the ALJ’s decision. Claimant does not have

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a “physical or other mental impairment imposing an additional and significant

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limitation of function.” This analysis is generally considered synonymous with the

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step two severity analysis. See 20 CFR § 404, Subpart P, App. 1 § 112.00 (A); see

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also Estrada v. Colvin, No. EDCV, 13-1691 CW, 2015 U.S. Dist. LEXIS 10494, at

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*5 (C.D. Cal. Jan. 28, 2015).

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Here, at step two of the sequential evaluation, the ALJ found only one severe

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impairment – Claimant’s learning disability. (T at 18). Plaintiff does not challenge

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this finding or provide evidence of any other impairment (physical or mental)

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imposing an additional and significant limitation of function. Although Claimant

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certainly had behavioral needs, the ALJ referenced evidence in the record that those

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needs were adequately addressed via special education services and support, with

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generally successful results, including academic progress and behavioral

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improvement. (T at 20-22).

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Lastly, the ALJ’s decision was supported by the assessment of Dr. M. Salib, a

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non-examining State Agency review consultant, who considered Listing §112.05,
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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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but concluded that the evidence did not support a finding that Claimant met or

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equaled the Listing. (T at 71-73). State Agency review physicians are highly

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qualified experts and their opinions, if supported by other record evidence, may

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constitute substantial evidence sufficient to support an ALJ’s decision. See Saelee v.

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Chater, 94 F.3d 520, 522 (9th Cir. 1996); see also 20 CFR § 404.1527 (f)(2)(i)(“State

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agency medical and psychological consultants and other program physicians,

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psychologists, and other medical specialists are highly qualified physicians,

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psychologists, and other medical specialists who are also experts in Social Security

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disability evaluation.”).

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Plaintiff argues that the ALJ should have weighed the evidence differently and

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resolved the conflict in favor of a conclusion that Claimant met the requirements of

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sub-paragraphs C or D of Listing §112.05.

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Commissioner, not this Court, to resolve conflicts in evidence. Magallanes v.

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Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 U.S. at 400. If the

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evidence supports more than one rational interpretation, this Court may not

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substitute its judgment for that of the Commissioner. Allen v. Heckler, 749 F.2d 577,

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579 (9th 1984). If there is substantial evidence to support the administrative

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findings, or if there is conflicting evidence that will support a finding of either

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disability or nondisability, the Commissioner’s finding is conclusive. Sprague v.

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Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ’s decision was

However, it is the role of the

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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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supported by substantial evidence and must therefore be sustained. See Tackett v.

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Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that if evidence reasonably

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supports the Commissioner’s decision, the reviewing court must uphold the decision

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and may not substitute its own judgment).

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V.

CONCLUSION

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After carefully reviewing the administrative record, this Court finds

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substantial evidence supports the Commissioner’s decision, including the objective

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medical evidence and supported medical opinions. It is clear that the ALJ thoroughly

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examined the record, afforded appropriate weight to the medical evidence, including

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the assessments of the examining medical providers and the non-examining

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consultants, when rendering a decision that Claimant is not disabled. This Court

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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)

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finds no reversible error and substantial evidence supports the Commissioner’s

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decision.

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VI. ORDERS

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IT IS THEREFORE ORDERED that:

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Judgment be entered AFFIRMING the Commissioner’s decision; and

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The Clerk of the Court shall file this Decision and Order, serve copies upon

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counsel for the parties, and CLOSE this case.
DATED this 5th day of July, 2017,
/s/Victor E. Bianchini
VICTOR E. BIANCHINI
UNITED STATES MAGISTRATE JUDGE

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DECISION AND ORDER – DONATO V. BERRYHILL, 2:16-CV-05024 (VEB)