Francisca Moreno v. Carolyn W. Colvin

Filing 19

MEMORANDUM AND ORDER by Magistrate Judge Kenly Kiya Kato: (see document image for further details). For the foregoing reasons, IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this action for further proceedings consistent with this Order. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (ad)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 Plaintiff, 11 v. 12 13 14 Case No. CV 16-9145-KK FRANCISCA MORENO, MEMORANDUM AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant. 15 16 Plaintiff Francisca M. Moreno (“Plaintiff”) seeks review of the final decision 17 18 of the Commissioner of the Social Security Administration (“Commissioner” or 19 “Agency”) denying her application for Title XVI Supplemental Security Income 20 (“SSI”). The parties have consented to the jurisdiction of the undersigned United 21 States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated 22 below, the Commissioner’s decision is REVERSED and this action is 23 REMANDED for further proceedings consistent with this Order. 24 /// 25 /// 26 /// 27 28 1 Pursuant to the request of the parties, the Court substitutes Nancy A. Berryhill, the current Acting Commissioner of Social Security, as Defendant in this action. Fed. R. Civ. P. 25(d). 1 I. 2 PROCEDURAL HISTORY On August 20, 2013, Plaintiff filed an application for SSI, alleging a disability 3 4 onset date of December 15, 2007. Administrative Record (“AR”) at 160-68. 5 Plaintiff’s application was denied initially on December 18, 2013. Id. at 93-97. On 6 January 14, 2014, Plaintiff requested a hearing before an Administrative Law Judge 7 (“ALJ”). Id. at 98. On June 22, 2015, Plaintiff appeared with counsel and testified at a hearing 8 9 before the assigned ALJ (the “ALJ Hearing”). Id. at 47-74. A medical expert 10 (“ME”), vocational expert (“VE”), and Plaintiff’s mother also testified at the 11 hearing. Id. at 50-58, 66-70, 71-74. On August 5, 2015, the ALJ issued a decision 12 denying Plaintiff’s application for SSI. Id. at 6-37. Plaintiff filed a request with the Agency’s Appeals Council to review the 13 14 ALJ’s decision. Id. at 5. On October 14, 2016, the Appeals Council denied 15 Plaintiff’s request for review. Id. at 1-4. On December 9, 2016, Plaintiff filed the instant action. ECF Docket No. 16 17 (“Dkt.”) 1, Compl. This matter is before the Court on the Parties’ Joint 18 Stipulation (“JS”), filed on July 24, 2017. Dkt. 18, JS. 19 II. 20 PLAINTIFF’S BACKGROUND Plaintiff was born on August 1, 1996, and her alleged disability onset date is 21 22 December 15, 2017. AR at 79. She was eleven years old on the alleged disability 23 onset date and eighteen years old at the time of the ALJ hearing. Id. at 74, 79. As 24 of the date of the ALJ hearing, Plaintiff was in the eleventh grade at a special 25 education high school. Id. at 64. Plaintiff alleges disability based on learning 26 disability, bipolar disorder, and asthma. Id. at 79. 27 /// 28 /// 2 1 III. 2 STANDARD FOR EVALUATING DISABILITY 3 A. DISABILITY IN A CHILD 4 A child (i.e., individual under eighteen years of age) claiming disability for 5 SSI must suffer from a “medically determinable physical or mental impairment, 6 which results in marked and severe functional limitations, and which can be 7 expected to result in death or which has lasted or can be expected to last for a 8 continuous period of not less than [twelve] months.” 42 U.S.C. § 9 1382c(a)(3)(C)(i). An impairment satisfies this requirement if it meets or equals in 10 severity any impairment that is listed in Title 20 of the Code of Federal 11 Regulations, Part 404, Subpart P, Appendix 1 (the “Listings”). 20 C.F.R. § 12 416.924(d). 13 14 15 16 To decide if a child is disabled for SSI, an ALJ conducts a three-step inquiry: 1. Is the child engaged in substantial gainful activity? If so, the ALJ finds the child is not disabled. If not, the ALJ proceeds to step two. 2. Does the child have a severe impairment? If an impairment “is a slight 17 abnormality or a combination of slight abnormalities that causes no more 18 than minimal functional limitations,” the ALJ finds the impairment is not 19 severe and denies the child’s claim. If the ALJ finds the child has a severe 20 impairment, the ALJ proceeds to step three. 21 3. Does the child’s severe impairment meet, medically equal, or functionally 22 equal an impairment in the Listings? If so, the ALJ finds the child is 23 disabled, assuming the twelve-month duration requirement is also met. If 24 not, the ALJ finds the child is not disabled. 25 See id. § 416.924. 26 With respect to the third step, a child’s impairment “is medically equivalent 27 to a listed impairment . . . if it is at least equal in severity and duration to the criteria 28 of any listed impairment.” Id. § 416.926(a). To establish medical equivalence, the 3 1 child “must establish symptoms, signs and laboratory findings ‘at least equal in 2 severity and duration’ to the characteristics of a relevant listed impairment.” 3 Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (quoting 20 C.F.R. § 4 404.1526). In addition, to determine whether a child’s severe impairment functionally 5 6 equals a listed impairment, the ALJ assesses functional limitations the child’s 7 impairment caused in six domains: 8 1. Acquiring and using information; 9 2. Attending and completing tasks; 10 3. Interacting and relating with others; 11 4. Moving about and manipulating objects; 12 5. Caring for self; and 13 6. Health and physical well-being. 14 See 20 C.F.R. § 416.926a(a), (b). To functionally equal a listed impairment, a 15 child’s impairment must result in “marked” limitations in two domains or an 16 “extreme” limitation in one domain. Id. § 416.926a(a). A “marked” limitation is 17 one that “interferes seriously with [the child’s] ability to independently initiate, 18 sustain, or complete activities.” Id. § 416.926a(e)(2)(i). It is “‘more than 19 moderate’” but “‘less than extreme.’” Id. An “extreme” limitation “interferes 20 very seriously with [the child’s] ability to independently initiate, sustain, or 21 complete activities.” Id. § 416.926a(e)(3)(i). The ALJ reserves the extreme rating 22 for “the worst limitations.” Id. 23 B. 24 DISABILITY IN AN ADULT For an adult to qualify for SSI, the claimant must demonstrate a medically 25 determinable physical or mental impairment that prevents her from engaging in 26 substantial gainful activity, and that is expected to result in death or to last for a 27 continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 28 (9th Cir. 1998). The impairment must render the claimant incapable of performing 4 1 the work she previously performed and incapable of performing any other 2 substantial gainful employment that exists in the national economy. Tackett, 180 3 F.3d at 1098. To decide if an adult claimant is disabled, and therefore entitled to benefits, 4 5 an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps 6 are: 1. Is the claimant presently engaged in substantial gainful activity? If so, the 7 claimant is found not disabled. If not, proceed to step two. 8 2. Is the claimant’s impairment severe? If not, the claimant is found not 9 disabled. If so, proceed to step three. 10 3. Does the claimant’s impairment meet or equal one of the specific 11 12 impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 13 the claimant is found disabled. If not, proceed to step four.2 4. Is the claimant capable of performing work she has done in the past? If so, 14 the claimant is found not disabled. If not, proceed to step five. 15 5. Is the claimant able to do any other work? If not, the claimant is found 16 disabled. If so, the claimant is found not disabled. 17 18 See Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 19 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). The claimant has the burden of proof at steps one through four, and the 20 21 Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953- 22 54. Additionally, the ALJ has an affirmative duty to assist the claimant in 23 developing the record at every step of the inquiry. Id. at 954. If, at step four, the 24 claimant meets her burden of establishing an inability to perform past work, the 25 26 27 28 “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s [residual functional capacity],” or ability to work after accounting for her verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant’s residual functional capacity, an ALJ must consider all relevant evidence in the record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 5 2 1 Commissioner must show that the claimant can perform some other work that 2 exists in “significant numbers” in the national economy, taking into account the 3 claimant’s residual functional capacity (“RFC”), age, education, and work 4 experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. 5 §§ 404.1520(g)(1), 416.920(g)(1). 6 IV. 7 THE ALJ’S DECISION 8 At the time Plaintiff filed her application, she was under the age of eighteen. 9 However, Plaintiff turned eighteen prior to the date of the hearing before the ALJ. 10 Thus, the ALJ employed the three-step sequential evaluation process for 11 determining disability of claimants under the age of eighteen, in addition to the 12 five-step sequential evaluation process for determining disability of adult claimants. 13 A. CHILD DISABILITY ANALYSIS 14 1. 15 At step one, the ALJ found Plaintiff has not engaged “in substantial gainful 16 Step One activity since the date the application was filed” on August 20, 2013. AR at 14. 17 2. Step Two 18 At step two, the ALJ found that before attaining age eighteen, Plaintiff “had 19 the following severe impairments: disruptive mood dysregulation disorder, 20 borderline intellectual functioning, and mild episodic asthma.” Id. 21 3. Step Three 22 At step three, the ALJ found that before attaining age eighteen, Plaintiff did 23 “not have an impairment or combination of impairments that meets or medically 24 equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, 25 Appendix 1, Part A or B.” Id. at 15. 26 The ALJ also found that prior to attaining age eighteen, Plaintiff “did not 27 have an impairment or combination of impairments that functionally equaled the 28 listings.” Id. at 17. The ALJ assessed the functional limitations Plaintiff’s 6 1 impairments caused and found less than marked limitations or no limitations in 2 each of the six domains. Id. at 17-27. 3 B. ADULT DISABILITY ANALYSIS 4 1. 5 At step one, the ALJ found Plaintiff has not engaged “in substantial gainful 6 Step One activity since the date the application was filed” on August 20, 2013. Id. at 14. 7 2. 8 At step two, the ALJ found Plaintiff “has not developed any new impairment 9 Step Two or impairments since attaining age eighteen. The [Plaintiff] has the following 10 severe impairments: unspecified mood disorder and mild episodic asthma.” Id. at 11 28. 12 3. Step Three 13 At step three, the ALJ found that since attaining age eighteen, Plaintiff “has 14 not had an impairment or combination of impairments that meets or medically 15 equals a listed impairment.” Id. 16 4. RFC Determination 17 The ALJ found that since attaining age eighteen, Plaintiff has had the RFC 18 “to perform a full range of work at all exertional levels but with the following 19 nonexertional limitations: non-complex routine tasks, no interaction with the 20 public, no task requiring hypervigilance, only occasional tasks requiring teamwork, 21 and no concentrated exposures to pulmonary irritants such as fumes, odors, dust, 22 and gases.” Id. at 30. 23 5. Step Four 24 At step four, the ALJ found Plaintiff “has no past relevant work.” Id. at 31. 25 6. 26 At step five, the ALJ found “[s]ince attaining age 18, considering [Plaintiff’s] 27 age, education, work experience, and residual functional capacity, jobs have existed Step Five 28 7 1 in significant numbers in the national economy that [Plaintiff] has been able to 2 perform.” Id. 3 V. 4 PLAINTIFF’S CLAIMS 5 Plaintiff presents two disputed issues: (1) whether the ALJ properly 6 considered the criteria for listing 112.05D; and (2) whether the ALJ properly 7 considered the criteria for listing 12.05C. JS at 2. 8 VI. 9 STANDARD OF REVIEW 10 Pursuant to 42 U.S.C. § 405(g), a district court may review the 11 Commissioner’s decision to deny benefits. The ALJ’s findings and decision should 12 be upheld if they are free of legal error and supported by substantial evidence based 13 on the record as a whole. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 14 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 15 “Substantial evidence” is evidence that a reasonable person might accept as 16 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 17 Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To 18 determine whether substantial evidence supports a finding, the reviewing court 19 “must review the administrative record as a whole, weighing both the evidence that 20 supports and the evidence that detracts from the Commissioner’s conclusion.” 21 Reddick, 157 F.3d at 720 (citation omitted); see also Hill v. Astrue, 698 F.3d 1153, 22 1159 (9th Cir. 2012) (stating that a reviewing court “may not affirm simply by 23 isolating a ‘specific quantum of supporting evidence’” (citation omitted)). “If the 24 evidence can reasonably support either affirming or reversing,” the reviewing court 25 “may not substitute its judgment” for that of the Commissioner. Reddick, 157 26 F.3d at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) 27 (“Even when the evidence is susceptible to more than one rational interpretation, 28 8 1 we must uphold the ALJ’s findings if they are supported by inferences reasonably 2 drawn from the record.”). 3 The Court may review only the reasons stated by the ALJ in his decision 4 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. 5 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be 6 considered harmless if it is “clear from the record” that the error was 7 “inconsequential to the ultimate nondisability determination.” Robbins, 466 F.3d 8 at 885 (citation omitted). 9 VII. 10 DISCUSSION 11 THE ALJ DID NOT PROPERLY DETERMINE 12 PLAINTIFF’S IMPAIRMENTS DO NOT MEET 13 OR EQUAL LISTINGS 112.05D AND 12.05C 14 Plaintiff argues “there is ample evidence to show that Plaintiff meets” 15 Listings 112.05D and 12.05C. JS at 3, 14. Plaintiff specifically argues she meets 16 both Listings 112.05D and 12.05C because (1) Plaintiff’s Full Scale IQ score of 70 is 17 within the required range of the Listings; and (2) Plaintiff was diagnosed with 18 bipolar disorder, learning disorder, disruptive mood dysregulation disorder, and 19 asthma – all of which manifested during her developmental period and impose an 20 additional and significant limitation of function. Id. at 3-4, 14-15. 21 As set forth below, while the ALJ concluded Plaintiff does not suffer from 22 “marked limitations with respect to social functioning, personal functioning, or 23 difficulties in maintaining concentration, persistence, or pace,” he failed to 24 properly consider whether Plaintiff has deficits in adaptive functioning. See AR at 25 14, 16. 26 /// 27 /// 28 /// 9 1 A. APPLICABLE LAW 2 Listings 12.05 and 112.05 define intellectual disability in adults and children, 3 respectively. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1. §§ 12.00, 112.00 (2015).3 4 “The structure of the mental disorders listings for children under age 18 parallels 5 the structure for the mental disorders listings for adults but is modified to reflect 6 the presentation of mental disorders in children.” Id. §§ 12.00A, 112.00A. To 7 meet Listings 12.05 and 112.05, the regulations require a claimant satisfy “the 8 diagnostic description in the introductory paragraph and any one of” the four 9 additional sets of criteria for Listing 12.05 (A through D) and six sets of criteria for 10 Listings 112.05 (A through F). Id. Pursuant to the introductory paragraphs of Listings 12.05 and 112.05, an 11 12 intellectual disability is “[c]haracterized by significantly subaverage general 13 intellectual functioning with deficits in adaptive functioning.” Id. §§ 12.05, 112.05. 14 Listing 12.05, however, additionally requires that “adaptive functioning initially 15 manifest[] during the developmental period; i.e., the evidence demonstrates or 16 supports onset of the impairment before age 22.” Id. § 12.05. As to the “additional sets of criteria,” Subsection C of Listing 12.05 and 17 18 Subsection D of Listing 112.05 both require “[a] valid verbal, performance, or full 19 20 21 22 23 24 25 26 27 28 A revised Listing of Impairments went into effect on January 17, 2017. Where, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 Fed. Appx. 801, 805 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 15-05925, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”); cf. Revised Medical Criteria for Determination of Disability, Musculoskeletal System and Related Criteria, 66 Fed. Reg. 58010, 58011 (Nov. 19, 2001) (“With respect to claims in which we have made a final decision, and that are pending judicial review in Federal court, we expect that the court’s review of the Commissioner’s final decision would be made in accordance with the rules in effect at the time of the final decision.”). Accordingly, unless otherwise noted, the Court applies the versions of 20 C.F.R. Pt. 404, Subt. P, App. 1 that were in effect at the time of the ALJ’s August 5, 2015 decision. 10 3 1 scale IQ of 60 through 70 and a physical or other mental impairment imposing an 2 additional and significant” work-related limitation of function, for adults, or 3 general limitation of function, for children. Id. §§ 12.05C, 112.05D. Thus, to meet Listings 12.05C and 112.05D, a claimant must generally satisfy 4 5 “three main components:” (1) subaverage intellectual functioning with deficits in 6 adaptive functioning; (2) an IQ score of 60 to 70; and (3) a physical or other mental 7 impairment causing an additional and significant limitation of function. Kennedy v. 8 Colvin, 738 F.3d 1172, 1175–76 (9th Cir. 2013). 9 B. RELEVANT FACTS 10 In evaluating Plaintiff’s limitations, the ALJ relied on three physician 11 opinions, as well as the opinion of Plaintiff’s special education teacher. The ALJ 12 additionally relied on Plaintiff’s testimony, her Individualized Education Plan, and 13 her treatment records at Kedren Community Health Center. 14 1. Plaintiff’s Testimony 15 On the date of the ALJ hearing, Plaintiff testified she was eighteen years old, 16 “still in 11th [grade],” and did not have a drivers’ license. AR at 59. Plaintiff stated 17 she “get[s] frustrated a lot” and has anger outbursts about “twice a day.” Id. at 18 62. As for her education, Plaintiff testified she had to repeat ninth grade and a 19 portion of tenth grade. Id. at 64. She stated she has an Individualized Education 20 Program (“IEP”) and is not in “regular classes.” Id. Plaintiff testified her classes 21 are small – sometimes only four students. Id. Plaintiff claimed she tried to attend 22 larger classes, where there were about twenty to thirty students, but “[i]t didn’t 23 really work out” because “it’s only one staff, it gets frustrating because they can 24 only help one person at a time.” Id. at 65. As for her work history, Plaintiff 25 testified she had a part-time job during one summer where she was responsible for 26 “wav[ing] the flag” on the street corner for Liberty Taxes. Id. at 60. 27 /// 28 /// 11 1 2. Dr. David Glassmire’s Opinion 2 The ALJ relied on and gave great weight to the opinion of David Glassmire, 3 Ph.D., a clinical psychologist who testified as a medical expert at the hearing before 4 the ALJ. Id. at 14. Dr. Glassmire reviewed all the evidence in the record except for 5 Plaintiff’s IEP. Id. at 51-52. Ultimately, Dr. Glassmire opined Plaintiff does not 6 meet or medically equal Listing 112.04 or 112.05. Id. at 51-52. 7 3. 8 The ALJ relied on and gave great weight to the opinion of Dr. R.E. Brooks, 9 Dr. R.E. Brooks’s Opinion MD, the State agency medical psychiatrist, who reviewed Plaintiff’s medical 10 records to assist in the disability determination. Id. at 87. Dr. Brooks evaluated 11 Plaintiff’s functionality in the six domains and opined Plaintiff’s impairments do 12 not meet or medically equal a Listing. Id. at 86-87. 13 4. Dr. Avazeh Chehrazi’s Opinion 14 The ALJ relied upon and gave some weight to the opinion of consultative 15 examiner, Dr. Avazeh Chehrazi, Ph.D. Id. at 21. Dr. Chehrazi is a clinical 16 psychologist who examined Plaintiff for purposes of her disability claim on 17 November 11, 2013. Id. at 21, 317-22. Dr. Chehrazi noted Plaintiff “was 18 hospitalized on a psychiatric basis in 2008 due to severe behavioral problems and 19 aggression” and “is currently receiving outpatient psychiatric care and 20 psychotherapy and has been diagnosed with bipolar disorder and ADHD.” Id. at 21 318. Additionally, Dr. Chehrazi reported Plaintiff “repeated kindergarten,” was 22 enrolled “in a special education 9th grade class” which she also repeated, “began 23 receiving special education services in 6th grade,” and “receives average to below 24 average grades.” Id. at 319. 25 Dr. Chehrazi performed a complete psychological evaluation, the Wechsler 26 Adult Intelligence Scale IV test, and the Vineland Adaptive Behavior Scales test. 27 Id. at 317. Dr. Chehrazi concluded Plaintiff’s cognitive ability falls within the 28 borderline range. Id. at 321-22. Further, Dr. Chehrazi opined Plaintiff “would be 12 1 able to understand, remember and carry out short, simplistic instructions with no 2 difficulty. She also would have moderate difficulty to understand, remember and 3 carry out detailed and complex instructions. She would have mild difficulty to 4 comply with school rules such as safety and attendance. She would have no 5 difficulty to respond to change in a normal classroom setting. She would have 6 moderate difficulty to maintain persistence and pace in a normal school setting.” 7 Id. at 322. Finally, Dr. Chehrazi found Plaintiff “would have moderate difficulty to 8 interact appropriately with teachers, adults and peers on a consistent basis and in 9 an age-appropriate manner.” Id. 10 5. Stephanie Gomez’s Opinion 11 The ALJ also considered the opinion of Plaintiff’s special education teacher, 12 Stephanie Gomez, who teaches at Hawthorne Academy, a non-public, special 13 education school. Id. at 307. Ms. Gomez has known Plaintiff for two years, and 14 spent time with her on a daily basis. Id. at 307-14. Ms. Gomez noted significant 15 improvement in Plaintiff during the 2013 school year, but also noted continued 16 areas of impairment in interacting and relating with others, including “slight 17 problem[s]” “expressing anger appropriately” and “following rules.” Id. at 310. 18 6. Plaintiff’s Individualized Education Program 19 The ALJ also considered notes from Plaintiff’s Individualized Education 20 Program, which tracks Plaintiff’s behavior, social, emotional, and academic records 21 at school. Id. at 450-550. While Plaintiff’s most recent IEP reflected an 22 improvement in her functioning at school, it noted areas where Plaintiff continued 23 to struggle. Id. at 19. For example, the IEP noted Plaintiff still struggles in 24 “[m]aintaining her emotions in the home setting,” and she continues to need help 25 in “managing anger, frustration, and other difficult feelings.” Id. at 453. Although 26 Plaintiff’s attendance has improved, Plaintiff “is still averaging at least one absence 27 a week.” Id. Additionally, the IEP noted Plaintiff’s impairments require Plaintiff 28 “to have instruction broke[n] up into parts, instruction to be repeated and/or 13 1 clarified, one-on-one assistance when needed as well as extra time to complete 2 assignments.” Id. Furthermore, the IEP reported Plaintiff “benefits from 3 constant reminders of standard school policies, frequent checks for understanding 4 of expectations, and verbal recognition for her endeavors and accomplishments.” 5 Id. Lastly, Plaintiff’s academics in 2012 indicated average scores in reading 6 fluency, below average comprehension skills, low average math fluency, and 7 average spelling skills. Id. at 583. A report from 2012 also indicates Plaintiff suffers 8 from “issues of distractibility” and a “lack of focus and attention.” Id. at 523. 7. 9 Treatment Records From Kedren Community Health Center 10 The ALJ also relied upon Plaintiff’s medical records from Kedren 11 Community Health Center between January 2013 and February 2015. Id. at 18, 12 234-60, 381-45. According to the record, Plaintiff visited Kedren on various 13 occasions seeking mental health services. Id. at 404-35. The initial assessment 14 report indicated Plaintiff sought treatment due to anger spells, loss of sleep, and 15 crying spells. Id. at 245. The initial assessment also reported issues with Plaintiff’s 16 developmental milestones during her early years – noting that she had to repeat 17 kindergarten, lacked impulse control, and fought with her peers. Id. at 248. It 18 further reported Plaintiff was receiving Ds and Fs during her tenth grade year at 19 Hawthorne. Id. at 249. Although notes from Kedren reflect Plaintiff’s mental 20 health symptoms have improved with medication, a treating physician opined 21 Plaintiff’s “symptoms impair her from functioning in daily living activities.” Id. at 22 413. 23 C. 24 ANALYSIS Here, the ALJ failed to properly consider whether Plaintiff has deficits in 25 adaptive functioning, particularly in light of the fact that (1) Plaintiff is been 26 enrolled in special education classes, (2) has been required to repeat grade levels in 27 the past, and (3) Plaintiff’s reported improvements were both recent and relative to 28 her past impairments. 14 1 Adaptive functioning4 refers to a claimant’s “[ ]ability to cope with the 2 challenges of ordinary everyday life.” Novy v. Astrue, 497 F.3d 708, 710 (7th Cir. 3 2007). It evaluates a claimant’s “effectiveness in areas such as social skills, 4 communication skills, and daily-living skills.” Hayes v. Comm’r of Soc. Sec., 357 5 F. App’x 672, 677 (6th Cir. 2009) (quoting Heller v. Doe, 509 U.S. 312, 329, 113 S. 6 Ct. 2637, 125 L. Ed. 2d 257 (1993). “The term ‘adaptive functioning’ refers to the 7 individual’s progress in acquiring mental, academic, social and personal skills as 8 compared with other unimpaired individuals of his/her same age. Indicators of 9 adaptive behavior include . . . educational and social achievements.” Lyons v. 10 Colvin, No. 7:13-CV-00614, 2014 WL 4826789, at *10 (N.D.N.Y. Sept. 29, 2014) 11 (citing POMS DI 24515.056D2). Examples of evidence supporting a finding of 12 deficits in adaptive functioning can include “special education classes, dropping 13 out of high school prior to graduation, difficulties in reading, writing or math, and 14 low skilled work history.” Campbell v. Astrue, No. 1:09-CV-00465 GSA, 2011 WL 15 444783, at *17 (E.D. Cal. Feb. 8, 2011). 16 Plaintiff has been diagnosed with ADHD and suffers from mood disruptive 17 disorders, including bipolar disorder. AR at 408, 572, 582-83. Plaintiff’s 18 documented history of resulting impairment and treatment has spanned at least 19 thirteen years. Id. at 248. At one point, Plaintiff’s mood disorders became so 20 21 22 23 24 25 26 27 28 4 The 2017 regulations define adaptive functioning as “how [a claimant] learn[s] and use[s] conceptual, social, and practical skills in dealing with common life demands. It is [her] typical functioning at home, at school, and in the community, alone or among others.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, §§ 12.05, 112.05 (2017). The regulations note that “[t]he fact that [a claimant] engage[s] in common everyday activities, such as caring for [her] personal needs, preparing simple meals, or driving a car, will not always mean that [she] do[es] not have deficits in adaptive functioning . . .” Id. Additionally, a conclusion on adaptive functioning can “rest on whether [a claimant] do[es] [her] daily activities independently, appropriately, effectively, and on a sustained basis. If [a claimant] receive[s] help in performing your activities, [the ALJ] need[s] to know the kind, extent, and frequency of help [the claimant] receive[s] in order to perform them. [It] will not [be] assume[d] that [a claimant’s] ability to do some common everyday activities, or to do some things without help or support, demonstrates that [her] mental disorder does not meet the requirements . . . .” Id. 15 1 severe she required hospitalization “on a psychiatric basis” because of her 2 “behavior problems and aggression.” Id. at 318. Not surprisingly, Plaintiff has 3 been enrolled in highly structured, special education classes since the Sixth Grade. 4 Id. at 319. In addition, the severity of Plaintiff’s limitations have also warranted an 5 IEP. Id. at 450-584. Moreover, despite her enrollment in special education classes 6 with an IEP, Plaintiff has continued to struggle. For example, Plaintiff was required 7 to repeat Ninth Grade and a portion of Tenth Grade. Id. at 64. Additionally, the 8 record reflects Plaintiff obtained grades which were below average and suffered 9 from “issues of distractibility” and a lack of focus and attention. Id. 523, 583. 10 Furthermore, notes from Ms. Gomez during the 2012-2013 school year indicate 11 Plaintiff went through periods of time where she was absent frequently and would 12 not make up assignments or complete her homework. Id. at 307, 309-10. Notably, 13 Ms. Gomez is one of the few individuals who interacts with Plaintiff on a daily 14 basis, and thus has the opportunity to observe Plaintiff in her day to day functions. 15 Id. at 307. Once again, all of these continued challenges and difficulties have 16 occurred despite the structure, resources, and individualized attention that special 17 education and an IEP provide. 18 The ALJ largely focused on improvements in Plaintiff’s impairments. See 19 id. at 18-20, 27, 29, 30. While the record reflects Plaintiff has experienced 20 substantial improvement in managing her emotions and performing at school, the 21 record also supports a finding that Plaintiff’s improvement occurred relatively 22 recently and, once again, in the highly-structured setting of a special education 23 school, with the guidance of an IEP. See Lyons v. Colvin, No. 7:13-CV-00614, 24 2014 WL 4826789, at *9 (N.D.N.Y. Sept. 29, 2014) (“[A]ttendance in special 25 education classes and an education pursuant to an IEP have been construed as 26 factors indicative of deficits in adaptive functioning.”); Forsythe v. Astrue, No. 27 1:10-CV-01515 AWI, 2012 WL 217751, at *7 (E.D. Cal. Jan. 24, 2012) (“Courts 28 have found that circumstantial evidence can infer a deficit in adaptive 16 1 functioning.”); Aminzadeh v. Comm’r of Soc. Sec., No. 1:10-CV-01068 GSA, 2011 2 WL 3322798, at *8 (E.D. Cal. Aug. 2, 2011) (finding deficits in adaptive functioning 3 where, although, “Plaintiff did graduate from high school, the record establishes 4 that she attended special education classes and had difficulty in the areas of 5 reasoning, memory, and attention”); AR at 307-12, 450-55. Moreover, despite 6 relative improvement in her emotional control and understanding at school, there is 7 evidence Plaintiff continues to struggle. For example, Ms. Gomez noted Plaintiff 8 has “slight problem[s]” expressing anger appropriately and following rules. Id. at 9 310. Similarly, Plaintiff’s IEP reflects Plaintiff still has difficulty in “[m]aintaining 10 her emotions in the home setting,” and she continues to need help in “managing 11 anger, frustration, and other difficult feelings.” Id. at 453. Additionally, the IEP 12 nots Plaintiff’s impairments continue to require Plaintiff “have instruction 13 broke[n] up into parts, instruction . . . repeated and/or clarified, one-on-one 14 assistance when needed as well as extra time to complete assignments.” Id. 15 Moreover, one of Plaintiff’s treating physicians at Kedren opined Plaintiff’s 16 “symptoms impair her from functioning in daily living activities.” Id. at 413. Ultimately, in light of Plaintiff’s low IQ score, additional affective disorders, 17 18 documented history of treatment and impairment, and continuing challenges 19 despite special educational classes and an IEP, the ALJ’s failure to make an explicit 20 finding regarding any deficits in Plaintiff’s adaptive functioning requires 21 reconsideration. 22 VIII. 23 RELIEF 24 25 A. APPLICABLE LAW “When an ALJ’s denial of benefits is not supported by the record, the 26 proper course, except in rare circumstances, is to remand to the agency for 27 additional investigation or explanation.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th 28 Cir. 2012) (citation omitted). “We may exercise our discretion and direct an award 17 1 of benefits where no useful purpose would be served by further administrative 2 proceedings and the record has been thoroughly developed.” Id. (citation 3 omitted). “Remand for further proceedings is appropriate where there are 4 outstanding issues that must be resolved before a determination can be made, and it 5 is not clear from the record that the ALJ would be required to find the claimant 6 disabled if all the evidence were properly evaluated.” Id. (citations omitted); see 7 also Reddick v. Chater, 157 F.3d 715, 729 (9th Cir. 1998) (“We do not remand this 8 case for further proceedings because it is clear from the administrative record that 9 Claimant is entitled to benefits.”). 10 B. ANALYSIS 11 In this case, the record has not been fully developed. The ALJ failed to 12 consider whether Plaintiff suffers from deficits in adaptive functioning, particularly 13 in light of her special education history. Accordingly, remand for further 14 proceedings is appropriate. 15 IX. 16 CONCLUSION 17 For the foregoing reasons, IT IS ORDERED that judgment be entered 18 REVERSING the decision of the Commissioner and REMANDING this action for 19 further proceedings consistent with this Order. IT IS FURTHER ORDERED that 20 the Clerk of the Court serve copies of this Order and the Judgment on counsel for 21 both parties. 22 23 24 25 Dated: September 14, 2017 HONORABLE KENLY KIYA KATO United States Magistrate Judge 26 27 28 18

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