Lina Al Ziadat v. Michael J Astrue

Filing 37

MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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10

LINA AL ZIADAT,
Guardian Ad Litem of
A.S.A, a minor,

11
Plaintiff,

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vs.

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14

CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,1

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Defendant.

) Case No. EDCV 13-0318-JPR
)
)
) MEMORANDUM OPINION AND ORDER
) AFFIRMING COMMISSIONER
)
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)

16
17 I.
18

PROCEEDINGS
Plaintiff Lina Al Ziadat seeks review of the Commissioner’s

19 final decision denying minor Claimant A.S.A.’s application for
20 supplemental security income (“SSI”). The parties consented to
21 the jurisdiction of the undersigned U.S. Magistrate Judge under
22 28 U.S.C. § 636(c). This matter is before the Court on the
23 parties’ Joint Stipulation, filed May 8, 2014, which the Court
24 has taken under submission without oral argument. For the
25
26
1

On February 14, 2013, Colvin became the Acting Commissioner

27 of Social Security. Pursuant to Federal Rule of Civil Procedure
25(d), the Court therefore substitutes Colvin for Michael J. Astrue
28 as the proper Respondent.
1

1 reasons stated below, the Commissioner’s decision is affirmed and
2 this action is dismissed.
3 II.

BACKGROUND

4

Claimant was born on March 18, 2007.

(AR 19, 65.)

On March

5 25, 2007, her mother, Plaintiff, filed an application for SSI on
6 her behalf.

(AR 65-70.)

Plaintiff alleged that Claimant had

7 been disabled from birth because of “[c]ongenital diaphragmatic
8 hernia” and “lung damage.”

(AR 91.)

A hearing was held on

9 September 29, 2008, at which Claimant was represented by counsel
10 and Plaintiff and an internist appeared and testified.
11 270, 288.)

(See AR

In a written decision issued June 2, 2009, an

12 administrative law judge determined that Claimant was not
13 disabled.
14

(AR 270-85.)

On June 30, 2009, Plaintiff filed a new application on

15 Claimant’s behalf.

(AR 594-97.)

Plaintiff alleged that

16 Claimant’s impairments caused her difficulty in understanding and
17 learning and adversely affected her physical abilities, her
18 behavior with others, and her ability to take care of her
19 personal needs.

(AR 608-10; see also AR 642 (alleging “[s]peech

20 delays and physical delays”).)

Plaintiff also noted Claimant’s

21 “hole on her heart [and] mild mitral valve prolapse.”
22

(AR 642.)

On February 26, 2010, the Appeals Council vacated the June

23 2009 decision and remanded for further proceedings.

(AR 288-90.)

24 The council directed the ALJ to make reasonable efforts to secure
25 a qualified pediatrician or appropriate medical specialist to
26 evaluate Claimant’s case.

(AR 288.)

The council further

27 directed him to enter into the record new evidence from the June
28 2009 application and a treating source.
2

(Id.)

1

On October 12, 2011, a second hearing was held, at which

2 pediatrician Perry Grossman appeared and testified as a medical
3 expert.

(AR 519-47.)

In a written decision issued November 14,

4 2011, the ALJ again determined that Claimant was not disabled.
5 (AR 15-34.)

On January 17, 2013, the Appeals Council denied

6 Plaintiff’s request for review.

(AR 7-9.)

This action followed.

7 III. STANDARD OF REVIEW
8

Under 42 U.S.C. § 405(g), a district court may review the

9 Commissioner’s decision to deny benefits.

The ALJ’s findings and

10 decision should be upheld if they are free of legal error and
11 supported by substantial evidence based on the record as a whole.
12 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v.
13 Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

Substantial evidence

14 means such evidence as a reasonable person might accept as
15 adequate to support a conclusion.

Richardson, 402 U.S. at 401;

16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

It

17 is more than a scintilla but less than a preponderance.
18 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.
19 Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

To determine whether

20 substantial evidence supports a finding, the reviewing court
21 “must review the administrative record as a whole, weighing both
22 the evidence that supports and the evidence that detracts from
23 the Commissioner’s conclusion.”
24 720 (9th Cir. 1996).

Reddick v. Chater, 157 F.3d 715,

“If the evidence can reasonably support

25 either affirming or reversing,” the reviewing court “may not
26 substitute its judgment” for that of the Commissioner.
27 720-21.
28
3

Id. at

1 IV.

THE EVALUATION OF CHILDHOOD DISABILITY

2

“An individual under the age of 18 shall be considered

3 disabled . . . if that individual has a medically determinable
4 physical or mental impairment, which results in marked and severe
5 functional limitations, and which can be expected to result in
6 death or which has lasted or can be expected to last for a
7 continuous period of not less than 12 months.”

42 U.S.C.

8 § 1382c(a)(3)(C)(i); see also Howard ex rel. Wolff v. Barnhart,
9 341 F.3d 1006, 1013 (9th Cir. 2003).
10

A.

11

In determining eligibility for SSI based on a childhood

The Three-Step Evaluation Process

12 disability, the Commissioner follows a three-step evaluation
13 process.
14

20 C.F.R. § 416.924(a).

In the first step, the Commissioner considers whether the

15 child has engaged in substantial gainful activity; if so, the
16 child is not disabled and the claim must be denied.
17 § 416.924(b).

If the child is not engaged in substantial gainful

18 activity, the second step requires the Commissioner to consider
19 whether she has a “severe” impairment or combination of
20 impairments; if not, a finding of not disabled is made and the
21 claim must be denied.

§ 416.924(c).

If the child has a “severe”

22 impairment or combination of impairments, the third step requires
23 the Commissioner to determine whether the impairment meets,
24 medically equals, or functionally equals an impairment in the
25 Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part
26 404, Subpart P, Appendix 1.

§ 416.924(d).

If so and the

27 impairment also meets the duration requirement, the child is
28 disabled and benefits are awarded.
4

Id.

1

An impairment “meets” a listed impairment if it satisfies

2 all of the criteria described in the Listing.

§ 416.925(c)(3).

3 An impairment “medically equals” a listed impairment “if it is at
4 least equal in severity and duration to the criteria of any
5 listed impairment.”

§ 416.926(a).

An impairment “functionally

6 equals” a listed impairment if it results in marked limitations
7 in at least two of six functional domains or an extreme
8 limitation in at least one domain.

§ 416.926a(a).

The six

9 functional domains are (1) acquiring and using information; (2)
10 attending to and completing tasks; (3) interacting with and
11 relating to others; (4) moving about and manipulating objects;
12 (5) caring for oneself; and (6) health and physical well-being.
13 § 416.926a(b)(1)(i)-(vi).

A marked limitation “interferes

14 seriously with [the child’s] ability to independently initiate,
15 sustain, or complete activities.”

§ 416.926a(e)(2).

An extreme

16 limitation “interferes very seriously” with those things.

§

17 416.926a(e)(3).
18

B.

19

At step one, the ALJ found that Claimant had never engaged

The ALJ’s Application of the Three-Step Process

20 in substantial gainful activity.

(AR 20, 33.)

At step two, he

21 found that she had the severe impairment of Simpson-Golabi-Behmel
22 syndrome (“SGBS”).

(AR 20, 33.)

At step three, he found that

23 she did not have an impairment or combination of impairments that
24 met or medically or functionally equaled a Listing.

(AR 20, 34.)

25 Specifically, the ALJ found that Claimant’s SGBS did not meet
26 Listings 112.12, 112.10, 12.02 B1, or 112.02 B2 (AR 20) and that
27 she had “less than marked limitation” in each of the six
28
5

1 functional domains (AR 20-34).2
2 disabled.
3 V.

He therefore found she was not

(AR 34.)

DISCUSSION

4

The ALJ Did Not Err in Assessing the Opinion Evidence

5

Plaintiff contends that the ALJ erred in rejecting the

6 findings and opinions of Claimant’s treating physicians and Los
7 Angeles Unified School District (“LAUSD”) examiners concerning
8 her functional limitations in favor of the opinion of the medical
9 expert.

(J. Stip. at 3.)

10

1.

11

Relevant background

On May 18, 2007, Claimant and her twin brother were born at

12 34 weeks.

(AR 107.)

Her twin was diagnosed with SGBS, from

13 which the twins’ older brother also suffered.
14 173.)

(Id.; see also AR

Claimant was successfully treated for left-lung

15 alectasis.3

(See AR 121, 124.)

On May 24, 2007, she underwent

16 left diaphragmatic hernia repair.

(AR 182-83.)

The procedure

17 was successful and she suffered no complications.

(Id.; see also

18 AR 140-57.)
19

On October 10, 2007, examining consultant Scott Kopoian

20
21

2

The

ALJ

stated

that

as

an

“older

infant

and

toddler,”

22 Plaintiff “did not satisfy any of the criterion referenced through
Listing 12.02 B1,” and as a “preschool child” [sic], she did not

23 “satisfy any criterion referenced through Listing 112.02B2.” (AR
quotation marks omitted).) It appears that the ALJ’s
24 20 (internal “Listing 12.02 B1” was a typographical error, because
reference to
25 Listing 12.02 applies to adults, whereas Listing 112.02 applies to
26
27
28

children under the age of 18, and subsection B1 specifically refers
to “older infants and toddlers.”
3

Alectasis is the collapse of part or all of a lung. See
Alectasis, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/
article/000065.htm (last updated Aug. 25, 2014).
6

1 performed a psychological evaluation of Claimant, who was then
2 four months and 22 days old.

(AR 228-32.)

He reported that her

3 infant-development scores, when adjusted for premature birth,
4 showed her mental development to be “Within Normal Limits” and
5 her motor development to be “Mildly Delayed.”

(AR 230.)

He

6 estimated her developmental age in both areas to be two months.
7 (Id.)

Dr. Kopoian reported that Claimant’s scores on the

8 Vineland Adaptive Behavior Scales, which were based upon
9 Plaintiff’s reports of Claimant’s behavior, were adequate in all
10 categories.
11

(AR 230-31.)

On October 19, 2007, registered play therapist Rita Snell of

12 Kolchins/Thomas Infant Development Services (“KIDS”) performed a
13 developmental assessment of Claimant, who was then five months
14 old but had a prematurity-adjusted age of four months.
15 65.)

(AR 462-

Snell reported the following developmental scores: gross

16 motor skills, eight to 12 weeks; adaptive skills, eight to 16
17 weeks; fine motor skills, four weeks; language skills, 16 weeks;
18 personal/social skills, eight to 16 weeks.

(AR 464.)

Snell

19 noted concern with “motor delays and limited mobility” and
20 recommended weekly physical and occupational therapy and biweekly
21 child-development appointments.

(AR 465.)

Treatment was

22 intended to “facilitate age appropriate motor skills,”
23 “[e]ncourage improved upper extremity use,” and “improve overall
24 play, learning and interaction skills.”
25

(Id.)

On April 18, 2008, child-development specialist Michelle

26 Livolsi of KIDS reported that Claimant, whose adjusted age was
27 then nine and a half months, was social and excited to play but
28 not very mobile.

(AR 458; see also AR 459 (noting parents’
7

1 concern with gross motor skills).)

Livolsi reported the

2 following developmental scores: cognitive skills, 40 to 44 weeks;
3 receptive language skills, 36 weeks; expressive language skills,
4 28 to 36 weeks; fine motor skills, 32 to 40 weeks; gross motor
5 skills, 32 to 36 weeks; social/self-help skills, 32 weeks.
6 460.)

She recommended continued physical and occupational

7 therapy and increased child-development services.
8

(AR

(AR 459.)

On May 19, 2008, Livolsi completed a developmental progress

9 report.
10 months.

(AR 236.)
(Id.)

Claimant’s adjusted age was then 10.75

Based on reports from her parents and counselor,

11 Livolsi assessed the following developmental levels: cognitive
12 development, 10 to 11 months; communicative development, seven to
13 nine months; receptive development, nine months; gross motor
14 skills, eight to nine months; fine motor skills, eight to 10
15 months; social/emotional development, eight months; adaptive
16 development, eight months.

(Id.)

Livolsi established a plan for

17 in-home physical therapy to help Claimant develop the skills
18 necessary for walking; in-home instruction from a child19 development specialist to improve her understanding of abstract
20 concepts and develop her problem-solving skills and personal21 social play; weekly in-home occupational therapy to improve eye22 hand coordination; and in-home visits from a respite worker to
23 afford Claimant’s mother relief.
24

(See AR 239-45.)

On June 14, 2008, Claimant was seen by cardiologist Jay

25 Pruetz.

(AR 356.)

He noted that she had no chronic medications,

26 good appetite, and appropriate weight gain.
27 reported nonsevere developmental delays.

(Id.)

(Id.)

Her parents

Claimant was

28 able to crawl and stand, had four or five words, and could hold a
8

1 bottle.

(Id.)

Claimant “appear[ed] to be doing quite well with

2 no evidence of heart failure or pulmonary over-circulation.”
3 357.)

Dr. Pruetz recommended reevaluation in six months.

(AR

(AR

4 358.)
5

In treatment notes, pediatrician Michelle Thompson

6 consistently noted that Claimant suffered general developmental
7 delay.

(See AR 421 (on June 19, 2008, noting “dev[elopmental]

8 delay, progressing slowly”); AR 423 (on Apr. 10, 2008, noting
9 “Dev Delay”); AR 425 (on Mar. 13, 2008, noting “Global dev
10 delay”); AR 427 (on May 22, 2008, noting “Global dev delay”).)
11 In a letter dated June 20, 2008, Dr. Thompson reported that
12 “[f]rom a developmental standpoint, [Claimant] is delayed
13 (especially in gross motor skills).”
14

(AR 250.)

In an August 21, 2008 report, geneticist Shoji Yano reported

15 that Claimant’s gene-mutation analysis was positive for SGBS.
16 (AR 247-48.)

Based on this result and Claimant’s “developmental

17 delay, early over growth,” and other clinical symptoms, Dr. Yano
18 diagnosed SGBS.

(Id.)

He noted that females often present

19 milder traits than males but stated that it was “not possible to
20 predict long term prognosis at this time.”
21

(Id.)

On October 6, 2008, Livolsi noted Claimant’s progress with

22 therapy.

(AR 454-55.)

She reported the following developmental

23 scores for Claimant, whose adjusted age was then 15 and a half
24 months: cognitive skills, 15 to 18 months; receptive language
25 skills, 15 to 18 months; expressive language skills, 15 months;
26 fine motor skills, 15 to 18 months; gross motor skills, 56 weeks
27 to 18 months; social/self-help skills, 15 to 18 months.
28 456.)

(AR

Livolsi recommended continued physical and occupational
9

1 therapy and child-development services.
2

(AR 455.)

On October 22, 2008, Dr. Yano completed a childhood

3 disability assessment form.

(AR 263-66.)

He indicated “marked”

4 limitations in each of the six domains, explaining that
5 “[p]atients with SGBS can have severe mental retardation,”
6 “severe global developmental delay,” and “major lifethreatening
7 [sic] anomalies.”

(AR 264-65.)

With respect to Claimant, Dr.

8 Yano noted that “[i]t is difficult to predict her final IQ at
9 this early stage.”
10

(AR 265.)

On January 26, 2009, Dr. Pruetz reevaluated Claimant, who

11 was “do[ing] very well,” had “[n]o concerning symptoms,” and was
12 an “active toddler” with “normal energy levels.”

(AR 360.)

Dr.

13 Pruetz opined that she would likely need surgery to close the
14 atrial-septal defect in her heart but that there was “no urgency”
15 because she “remain[ed] asymptomatic,” “with normal growth.”

(AR

16 362.)
17

On February 3, 2009, when Claimant was 21 months old, speech

18 language pathologist Natalie Zhitnitsky of KIDS assessed
19 Claimant’s play, gesture, language-comprehension, and language20 expression skills, which were commensurate with those of an 1821 to-21-month-old. (AR 453.)

Zhitnitsky opined that Claimant had

22 “age appropriate expressive, receptive language skills and play
23 skills” and recommended no speech therapy.
24 Claimant’s mother, agreed.
25

(Id.)

Plaintiff,

(Id.)

On February 10, 2009, Stephanie Bankston of Buonora Child

26 Development Center recommended that Claimant’s home occupational
27 therapy be decreased to once a month “based on her progress in
28 the areas of sensory-motor/sensory processing skills, fine10

1 motor/visual-motor skills, and oral-motor/feeding skills during
2 the past several months.”
3

(AR 450.)

On April 30, 2009, Bankston completed a progress report,

4 noting Claimant’s “significant progress in all areas of
5 development.”

(AR 445 (noting 99% of goals met, 1%

6 “[e]merging”); see also AR 446-47.)

Bankston observed that

7 Claimant “shows appropriate attention span,” “participates”
8 “enthusiastically,” “needs minimal prompting to finish tasks,”
9 “shows tolerance for messy experiences,” and “likes to
10 participate in music and movement activities.”

(AR 445.)

11 Bankston noted, however, that she “warm[s] up to people slowly,”
12 “does not like to be surprised or touched,” and “gets very upset”
13 if “startled.”

(Id.)

Although she reportedly was using more

14 than 25 words at home, she used fewer in the classroom.
15

(Id.)

Bankston opined that Claimant continued to exhibit “slight

16 delay in all areas of development.”

She reported the following

17 developmental scores for Claimant, who was then 18 months old:
18 cognitive skills, 15 to 18 months; receptive language skills, 15
19 to 18 months; expressive language skills, 15 to 18 months; gross
20 motor skills, 18 to 20 months; fine motor skills, 15 to 18
21 months.
22

(Id.)

On May 12, 2009, physical therapist Heather Andersen of KIDS

23 reported that Claimant “presents with slightly low muscle tone in
24 the lower extremities and trunk” but “no longer demonstrates
25 delays in gross motor development.”

(AR 472.)

Andersen

26 recommended that physical therapy be discontinued.
27

(Id.)

On July 6, 2009, Dr. Pruetz noted mitral valve prolapse and

28 mild mitral regurgitation but said that Claimant continued to do
11

1 well.

(AR 365.)

He recommended that corrective cardiac surgery

2 be performed the following summer.
3

(Id.)

On July 23, 2009, occupational therapist Dawn Mie Kurakazu

4 performed a Pediatric Evaluation of Disability Inventory and
5 reported that Claimant was “functioning below the normative range
6 for all areas of assessment.”

(AR 346-47.)

Kurakazu recommended

7 continued occupational, physical, and speech therapy, early
8 intervention programs, behavior therapy, and a more detailed
9 motor assessment.
10

(AR 347.)

On November 2, 2009, Dr. Yano reported that although

11 Claimant might need heart surgery in the future, she had “been
12 well without hospitalization” since her last visit.

(AR 342.)

13 She had stopped attending physical therapy and special education
14 classes.

(AR 343.)

In addition to a heart condition and history

15 of hernia surgery, she had a macrocephalic head,4 prominent eyes,
16 an upturned nose, and “mild developmental delay,” but she was
17 otherwise normal.

(Id.)

Dr. Yano recommended continued special

18 education “to maximize her potential abilities” and suggested
19 that Claimant visit a cardiologist, schedule an abdominal
20 ultrasound to check for childhood tumors, and follow up with him
21 in six months.
22

(AR 345.)

The same day, Dr. Yano completed a childhood disability

23 assessment form, indicating that Claimant suffered “marked”
24 limitations in all six domains.

(AR 506-07.)

He explained that

25
26
4

Macrocephaly is large head size, which sometimes indicates

27 that an infant suffers from a medical condition. See Increased
Head Circumference, MedlinePlus, http://www.nlm.nih.gov/medline
28 plus/ency/article/003305.htm (last updated May 10, 2013).
12

1 SGBS “is known to cause developmental delay and mental
2 retardation” as well as “motor delay.”

(Id.)

He noted

3 Claimant’s congenital heart defects and opined that they “may
4 worse[n] her motor development and physical stamina.”
5

(AR 507.)

On May 17, 2010, Claimant, then one day short of her third

6 birthday, was assessed by LAUSD staff.

(AR 847-61.)

Karen

7 Stanton performed an occupational-therapy assessment, opining
8 that Claimant displayed “[m]ild delays” in “visual motor skills”
9 but that the delays “appear[ed] to be due to non preference for
10 these activities.”
11

(AR 851.)

The same day, Lauren Fields performed a language and speech

12 assessment of Claimant, finding she had a “mild articulation
13 disorder” but “adequate” “oral motor skills.”

(AR 858.)

She was

14 reported to have achieved low scores on auditory comprehension
15 and expressive communication, placing her in the first percentile
16 for language.

(Id.)

It was noted that she identified her

17 articles of clothing, understood spatial concepts and photographs
18 of familiar objects, recognized action in pictures, and
19 comprehended the use of objects.

(AR 858-59.)

She named objects

20 in photographs, used words more often than gestures to
21 communicate, asked questions, used words for a variety of
22 pragmatic functions, used different word combinations, used
23 plurals, combined three to four words in spontaneous speech, used
24 gerunds, and answered questions logically.
25

(AR 859.)

Claimant achieved the following developmental scores:

26 articulation, 24 to 30 months; receptive language, 18 to 24
27 months; expressive language, 18 to 24 months; pragmatics, 24 to
28 30 months.

(AR 859.)

She was reported to have a “severe
13

1 receptive language and expressive language delay” but “adequate
2 vocabulary.”
3

(Id.)

School psychologist Melaney Hendrickson opined that Claimant

4 had “Average” physical and social skills but “Below Average”
5 adaptive, cognitive, communication, and general-development
6 skills.

(AR 853.)

She was able to label simple pictures, use

7 two- and three-word sentences, and respond and behave
8 appropriately.

(AR 854.)

She was easily distracted, responded

9 slowly and needed questions repeated, and had difficulty
10 following directions and modeling tasks.
11

(Id.)

The LAUSD examiners’ assessments were used to formulate a

12 June 7, 2010 Individualized Education Program (“IEP”).

(AR 825-

13 46.)
14

On December 18, 2010, Dr. Thompson completed a childhood

15 assessment form, indicating that Claimant had “extreme”
16 limitations in acquiring and using information; “marked”
17 limitations in attending to and completing tasks, self-care,
18 interacting and relating with others, and health and physical
19 well-being; and less than marked limitations in moving about and
20 manipulating objects.

(AR 516-17.)

For every category except

21 health and physical well-being, Dr. Thompson based her assessment
22 of “extreme” and “marked” limitations upon the LAUSD IEP, noting
23 that Claimant “scored well below average for language and
24 cognition.”
25

(AR 516.)

On February 2, 2011, the Moreno Valley Unified School

26 District established an IEP for Claimant, then three years and
27 seven months old, providing for specialized academic instruction
28 twice weekly.

(AR 650.)

Claimant was noted to be inquisitive,
14

1 social, and communicative.

(AR 651.)

Her parents expressed

2 “[n]o real concerns” about her education progress.

(Id.)

3 Claimant was able to identify simple shapes and a few colors,
4 count to 10 (sometime omitting six or seven), trace her name, and
5 identify the letters in it.
6 goals.”
7

(Id.)

“She met all her previous

(Id.)

She needed no help with reading, written language, motor

8 skills, behavioral skills, vocational skills, or health.
9 651-52.)

(AR

Her motor skills were age appropriate; she walked up

10 steps using alternating feet, rode a tricycle, ran easily, could
11 balance on one foot for a few seconds, could manipulate small
12 objects and stack eight blocks, and could complete a six-piece
13 puzzle.

(AR 651.)

She was social and talkative, helped and

14 shared with other students, took turns and lined up
15 appropriately, finished assignments, and followed teacher
16 instructions.

(AR 652.)

She fed herself and helped dress

17 herself, used the toilet and washed her hands independently,
18 cleaned up toys when asked, and asked for help if she needed it.
19 (Id.)
20

Claimant needed assistance with math and communicative

21 skills.

(AR 651.)

Specifically, she needed “to be able to

22 recognize and continue a simple pattern and to be able to
23 understand and use increasingly complex sentences.”

(Id.)

It

24 was noted that she “use[d] language for a variety of purposes,”
25 spoke in four- to seven-word sentences, and “follow[ed] familiar
26 2-step directions” but “often misuse[d] pronouns and
27 possessives.”

(Id.)

28 of the time.”

(AR 659.)

Her articulation was age appropriate “90%

15

1

On September 7, 2010, Dr. Yano wrote a letter confirming

2 Claimant’s SGBS diagnosis and noting that patients with the
3 syndrome “have an increased risk of developing childhood cancers
4 including hepatoblastoma and developmental delay.”
5

On November 22, 2010, Claimant underwent cardiac surgery to

6 patch an atrial-septal defect.
7 complications.
8

(AR 863.)

(AR 865-66.)

There were no

(AR 866.)

At the October 12, 2011 hearing, Dr. Grossman testified that

9 based upon his review of the medical evidence, Claimant’s
10 diaphragmatic hernia and atrial-septal defect were successfully
11 treated and her physical health had been good thereafter.
12 523-24.)

(AR

He noted that her development, although difficult to

13 assess in infancy, appeared close to normal when measured against
14 her adjusted age and that the records showed only “slight delay”
15 in development as she aged.

(AR 524.)

He emphasized her “very

16 good” speech and language evaluation, showing “age-appropriate
17 expressive receptive language skills and facial skills.”

(Id.)

18 He also noted the December 2009 evaluation that Claimant no
19 longer displayed delays in gross motor development.
20

(AR 524-25.)

Dr. Grossman opined that the LAUSD assessment of severe

21 receptive and language delay was “grossly incompatible” with the
22 findings that Claimant had adequate vocabulary and other details
23 suggesting “a pretty normal, clever 2-year-old.”

(AR 525.)

He

24 found the assessments of Drs. Yano and Thompson to be “patently
25 absurd” because they were considerably more extreme than those of
26 the state-agency physicians.

(AR 527.)

Dr. Grossman dismissed

27 the finding of very severe receptive and expressive language
28 delay as inconsistent with Claimant’s reported performance during
16

1 that assessment and the findings of speech and language
2 pathologist Zhitnitsky.
3

(AR 529-30.)

Dr. Grossman testified that no Listing was suitable for SGBS

4 and that Claimant’s heart disease was not severe enough to meet
5 Listing 104.06(C).
6
7

2.

(AR 526.)

Applicable law

Three types of physicians may offer opinions in Social

8 Security cases: (1) those who directly treated the plaintiff, (2)
9 those who examined but did not treat the plaintiff, and (3) those
10 who did not treat or examine the plaintiff.
11 F.3d 821, 830 (9th Cir. 1995).

Lester v. Chater, 81

A treating physician’s opinion is

12 generally entitled to more weight than that of an examining
13 physician, and an examining physician’s opinion is generally
14 entitled to more weight than that of a nonexamining physician.
15 Id.
16

This is true because treating physicians are employed to

17 cure and have a greater opportunity to know and observe the
18 claimant.

Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

19 If a treating physician’s opinion is well supported by medically
20 acceptable clinical and laboratory diagnostic techniques and is
21 not inconsistent with the other substantial evidence in the
22 record, it should be given controlling weight.

§ 416.927(c)(2).

23 If a treating physician’s opinion is not given controlling
24 weight, its weight is determined by length of the treatment
25 relationship, frequency of examination, nature and extent of the
26 treatment relationship, amount of evidence supporting the
27 opinion, consistency with the record as a whole, the doctor’s
28 area of specialization, and other factors.
17

§ 416.927(c)(2)-(6).

1

When a treating or examining doctor’s opinion is not

2 contradicted by some evidence in the record, it may be rejected
3 only for “clear and convincing” reasons.

See Carmickle v.

4 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)
5 (quoting Lester, 81 F.3d at 830-31).

When a treating or

6 examining physician’s opinion is contradicted, the ALJ must
7 provide only “specific and legitimate reasons” for discounting
8 it.

Id.

The weight given an examining physician’s opinion,

9 moreover, depends on whether it is consistent with the record and
10 accompanied by adequate explanation, among other things.
11 § 416.927(c)(3)-(6).
12

In addition to physicians, other licensed specialists can

13 provide evidence to establish an impairment.

§ 416.913(a).

14 Licensed or certified psychologists, including school
15 psychologists opining as to intellectual or learning
16 disabilities, and qualified speech-language pathologists are
17 among the “[a]cceptable medical sources.”

§ 416.913(a)(2), (5).

18 As with physicians, an ALJ must provide specific and legitimate
19 reasons to discount a contradicted opinion from a psychologist or
20 comparable acceptable medical source; he need only provide
21 germane reasons, however, to discount an opinion provided by a
22 nonacceptable medical source.

Molina v. Astrue, 674 F.3d 1104,

23 1111 (9th Cir. 2012).
24
25

3.

Analysis

The ALJ agreed with Dr. Grossman’s opinion “overall” and

26 accepted his reasons for finding Claimant not disabled, which
27 were as follows: (1) she had no “sustained impediment on physical
28 functioning”; (2) “the strong weight of the evidence” showed she
18

1 had “done well in all aspects of health,” that is, “physically,
2 cognitively and behaviorally”; (3) the 2010 LAUSD IEP report
3 ranking her in the first percentile for language and finding
4 “severe deficits” was inconsistent with the associated empirical
5 data; (4) the first-percentile ranking and finding of severe
6 deficit were also inconsistent with other evidence in the record,
7 and “such a change in [Claimant’s] status within a one-year
8 period is not medically explainable”; (5) the opinions favoring a
9 finding of disability “reflect the worst case scenario of what
10 could result from the disease, but do not reflect what has, in
11 fact, transpired”; and (6) those opinions described limitations
12 using terminology with a specific meaning under Social Security
13 law, but the medical sources making the assessments did not
14 indicate familiarity with those meanings.
15

(AR 22-23.)

Plaintiff contends that Dr. Grossman’s testimony was

16 “[c]ontrary to the overwhelming medical evidence in the record”
17 and that the ALJ erred in relying on it instead of the opinions
18 of Dr. Yano, Dr. Thompson, and the LAUSD assessors.

(J. Stip. at

19 6.)
20
21

a. LAUSD IEP
The ALJ summarized the evidence relevant to Claimant’s

22 functioning in each of the six domains: acquiring and using
23 information, attending to and completing tasks, interaction and
24 relating with others, moving about and manipulating objects,
25 caring for oneself, and health and physical well-being.
26 24-33.)

(See AR

He found that although the LAUSD IEP findings suggested

27 significant limitations in each of the first four domains, those
28 findings were not supported by the underlying data and were
19

1 contradicted by the findings of several other practitioners who
2 had assessed Claimant.

(See AR 21-22, 24-31.)

In detailing the

3 evidence relevant to each of the six domains of function, the ALJ
4 set forth specific and legitimate bases for discounting the
5 findings in the LAUSD report and for his finding that Claimant
6 suffered from less than marked limitation in each domain.

See

7 Lester, 81 F.3d at 830-31; Molina, 674 F.3d at 1111.
8
9

i.

Acquiring and using information

For instance, although Plaintiff emphasizes the LAUSD

10 findings that Claimant had receptive language skills in the first
11 percentile, “severe receptive language and expressive language
12 delay,” and “deficits in articulation” (J. Stip. at 5 (quoting AR
13 858-60)), the ALJ rejected the first-percentile ranking as
14 inconsistent with reports that Claimant named objects in
15 photographs, used words more often than gestures to ask
16 questions, used words for a variety of pragmatic functions, used
17 different word combinations, combined three to four words
18 spontaneously, and answered questions logically (AR 22; see AR
19 525, 828, 859).

He also found the first-percentile ranking

20 inconsistent with the finding that Claimant was “average” or
21 “below average” in six functional areas, suggesting that any
22 delay was mild.

(AR 23; see AR 853.)

He noted in particular

23 Claimant’s reported response to a language sample, in which she
24 “responded to single words in an immediate context, understood
25 one word in a sentence when the referents were present, and
26 pointed to objects and body parts” when instructed to indicate
27 them to the examiner.

(AR 26; see AR 859.)

She further

28 “performed some actions with verbal instruction alone,” “knew the
20

1 names of the familiar people, and used strategies to respond to
2 commands.”

(AR 26; see AR 859.)

The ALJ found that this data

3 directly contradicted a finding of “severe receptive language and
4 expressive delay.”
5

(AR 26.)

The ALJ also found that the LAUSD findings of significant

6 language and expressive delays were contradicted by other
7 assessments of Claimant, which reflected only slight delays
8 significantly ameliorated by therapy.

For instance, he noted

9 that in October 2007, Dr. Kopoian assessed her mental development
10 to be “Within Normal Limits,” found her to be “adequate” in all
11 domains tested, and noted that she “was able to perform a number
12 of cognitive tasks within normal limits when corrected for pre13 maturity.”

(AR 25; see AR 230-31.)

The ALJ noted that, also in

14 October 2007, Snell reported Claimant’s language development to
15 be appropriate for her adjusted age of 16 weeks.
16 464.)

(AR 25; see

The ALJ noted in particular that almost a year and a half

17 later, in February 2009, Zhitnitsky opined that Claimant
18 “appear[ed] to have age appropriate expressive, receptive and
19 play skills,” rated her language levels at 18 to 21 months, and
20 recommended no speech therapy.

(AR 25-26; see AR 453.)

The ALJ

21 accepted Dr. Grossman’s assertion that it was not medically
22 explainable that Claimant could have deteriorated so rapidly as
23 to merit a first-percentile language ranking and finding of
24 “severe deficits” in communication, cognition, and social skills
25 just over a year later.
26

(AR 26; see AR 530.)

The ALJ found that the reliability of the LAUSD IEP was

27 further undermined by the later February 2011 Moreno Valley IEP,
28 which reported that Claimant needed no help with reading or
21

1 written language.

(AR 23; see AR 651-52.)

Although Claimant was

2 found to need some assistance with communication skills, she was
3 deemed to be inquisitive, social, and communicative and to use
4 age-appropriate articulation “90% of the time.”

(AR 651.)

Thus,

5 the ALJ found that even were he to accept the findings of the
6 LAUSD IEP, “the 2011 report would show substantial improvement,”
7 undermining any claim of disability.
8

(AR 23.)

He therefore reasonably found that Claimant had less than

9 marked limitations in acquiring and using information.
10
11

ii.

(AR 26.)

Attending to and completing tasks

Similarly, although the LAUSD IEP assessed “major deficits”

12 in Claimant’s capacity for attending to and completing tasks, the
13 ALJ found that the underlying data did not support such a severe
14 assessment.

He noted that Claimant’s delays in attending to

15 tasks and play skills, her desire for attention, and her
16 vulnerability to distraction were consistent with a finding of
17 minor deficit.

(AR 27; see AR 833, 874.)

He found, however,

18 that her reported capacity to sit for the duration of preschool
19 tasks and to show arousal levels adequate for following
20 directives and participating in activities suggested that those
21 deficits were not as major as reported.

(AR 27; see AR 831.)

22 Moreover, the ALJ found that Stanton’s opinion that Claimant’s
23 mild delays were attributable to “non preference for activities”
24 undermined the findings of attention deficit.
25 851.)

(AR 27; see AR

He noted, too, Claimant’s reported age-appropriate

26 attention levels.

(AR 27; see AR 850.)

The ALJ thus found that

27 the LAUSD report offered “[a]t best” “a mixed-bag” that “[did]
28 not support a ‘marked’ or greater level of limitation.”
22

(AR 27.)

1

In this domain, too, the ALJ noted the contrary findings of

2 others who had assessed Claimant.

(Id.)

In October 2007, Dr.

3 Kopoian noted that Claimant was attentive to her mother’s voice,
4 although she could not copy simple behaviors, such as placing
5 blocks in a box.

(Id.; AR 230.)

The same month, Snell reported

6 that Claimant was alert, responsive, and followed a person moving
7 across the room.

(AR 27; see AR 464.)

In February 2009,

8 Zhitnitsky reported that Claimant exhibited good eye contact and
9 attention during examination.

(AR 27; see AR 452.)

And in April

10 2009, Bankston noted Claimant’s appropriate attention span,
11 enthusiastic participation in all learning centers, and need for
12 minimal prompting to finish tasks.

(AR 27; see AR 473.)

13 Finally, the 2011 IEP noted Claimant’s interest in reading and
14 her capacity for following instructions and finishing preschool
15 assignments; further, her occasional tantrums were “within normal
16 range for her age,” suggesting to the ALJ “a lesser level of
17 concern in this domain” than that indicated by the LAUSD IEP.
18 (AR 28; see AR 651.)
19
20

iii. Interacting and relating with others
The ALJ found even less indication that Claimant struggled

21 to interact and relate with others.

Although Plaintiff reported

22 Claimant’s attention-seeking behaviors to the LAUSD, the report
23 reflects a finding that Claimant
24

is sweet and friendly and enjoys children her own age.

25

She

26

appropriately.

responds

27 (AR 29; see AR 833.)

to

requests

and

knows

how

to

act

This is consistent with findings of others

28 who assessed Claimant, both before and after the LAUSD IEP.
23

(See

1 AR 228 (Oct. 2007, Dr. Kopoian noting that Claimant was calm and
2 attempted to engage others in play); AR 464 (Oct. 2007, Snell
3 noting that Claimant was alert and responsive, had a social
4 smile, and laughed aloud); AR 486 (Apr. 2008, Livolsi reporting
5 that Claimant was “very social,” “enjoy[ed] playing with others
6 around her,” and was “almost always smiling and happy”); AR 447
7 (Apr. 2009, Bankston noting that Claimant had met all goals in
8 the social/emotional realm); AR 651-52 (2011 IEP describing
9 Claimant as social and talkative, helping other students, sharing
10 toys, taking turns and lining up appropriately, and acting out
11 only within normal range).)

Thus, the ALJ reasonably found that

12 Claimant had less than marked limitations in interacting and
13 relating with others.
14
15

iv.

Moving about and manipulating objects

The ALJ acknowledged consistent findings of mild delay in

16 Claimant’s motor skills.

(AR 30-31; see AR 230 (Oct. 2007, Dr.

17 Kopoian noting mild delay); AR 464 (Oct. 2007, Snell assessing
18 fine motor skills at four weeks and gross motor skills at eight
19 to 12 weeks); AR 459 (Apr. 2008, parents expressing concern with
20 motor skills); AR 250 (June 2008, Dr. Thompson describing
21 Claimant as developmentally delayed, especially in gross motor
22 skills).)

He found, however, that she responded well to

23 therapies intended to address those deficits.

(AR 30-31; see AR

24 454-55 (Oct. 2008, Livolsi noting Claimant’s progress); AR 445
25 (Apr. 2009, Bankston noting only “slight delay” in all areas of
26 development and that 18-month-old Claimant had gross motor skills
27 at 18 to 20 months and fine motor skills at 15 to 18 months); AR
28 472 (May 2009, Anderson noting Claimant “no longer demonstrates
24

1 delays in gross motor development” but only “slightly low muscle
2 tone in the lower extremities and lower trunk,” recommending no
3 further physical therapy); AR 343 (Nov. 2009 report that Claimant
4 stopped physical and occupational therapy).)

The ALJ further

5 noted that the LAUSD report mentioned only “mild delays in . . .
6 visual motor skills” attributable to “non preference for these
7 activities” but found Claimant to have “adequate fine motor
8 control using mature grasp patterns and in-hand manipulation
9 skills.”

(AR 31; see AR 831, 851.)

Further, the 2011 IEP found

10 that Claimant had no need for help with motor skills and sensory
11 motor integration and could use alternating feet on the stairs,
12 ride a tricycle, run easily, balance on one foot for a few
13 seconds, manipulate small objects, stack eight blocks, and
14 complete a six-piece puzzle.

(AR 31; see AR 651.)

Accordingly,

15 the ALJ found that Claimant had largely overcome her early delays
16 in motor skills through therapy.
17

Thus, although the LAUSD IEP reported significant

18 limitations corresponding to four of the six domains, the ALJ
19 discounted those assessments.

That the data underlying the LAUSD

20 IEP were inconsistent with the findings and recommendations of
21 the specialists who prepared the report was a specific and
22 legitimate basis to discount their opinions.

See Matney ex rel.

23 Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992)
24 (“inconsistencies and ambiguities” in doctor’s opinion were
25 specific and legitimate reasons for rejecting it); Valentine v.
26 Comm’r Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009)
27 (contradiction between physician’s opinion and treatment notes
28 constitutes specific and legitimate reason for rejecting
25

1 opinion).

Further, the inconsistency between the LAUSD IEP and

2 the other medical evidence, including the findings of several
3 other child-development specialists, was a specific, legitimate
4 reason to question its reliability.

See § 416.927(c)(4);

5 Houghton v.Comm’r of Soc. Sec. Admin., 493 F. App’x 843, 845 (9th
6 Cir. 2012) (ALJ’s finding that doctors’ opinions were “internally
7 inconsistent, unsupported by their own treatment records or
8 clinical findings, [and] inconsistent with the record as a whole”
9 constituted specific and legitimate bases for discounting them);
10 Rincon v. Colvin, No. CV 12-10583-PJW, 2014 WL 32114, at *2-3
11 (C.D. Cal. Jan. 3, 2014) (finding ALJ properly discounted
12 doctor’s opinion that was inconsistent with her clinical findings
13 and those of other examining doctors); cf. Crane v. Barnhart, 224
14 F. App’x 574, 576 (9th Cir. 2007) (ALJ properly rejected opinion
15 of psychologist when it was contradicted by later opinions of two
16 other examining psychologists).
17
18
19

Remand is not warranted on this basis.
b.

Dr. Yano

The ALJ rejected Dr. Yano’s 2008 and 2009 assessments and

20 2010 letter as insufficiently specific to Claimant and
21 unsupported by medical evidence.
22

(See AR 23-24.)

As the ALJ noted, although Dr. Yano twice opined that

23 Claimant suffered “marked” limitations in all six domains, he
24 offered little basis in her medical history for these findings.
25 (AR 23; see AR 263-66, 505-07.)

The ALJ found that Dr. Yano

26 “speaks to the [SGBS] disease process and its potential effects”
27 but “does not speak to the actualization of some of such risks”
28
26

1 in her case.5

(AR 23-24 (citing AR 506-07 (explaining “marked”

2 limitation in four domains by noting “patient’s condition is
3 known to cause developmental delay and mental retardation”)).)
4 The ALJ noted a “similar” “narrative” in Dr. Yano’s 2010 letter.
5 (AR 24; see AR 863 (noting “increased risk of developing
6 childhood cancers . . . and developmental delay”).)

Moreover,

7 the ALJ found that “[t]o the extent that Dr. Yano is correct in
8 his reports in stating or suggesting this claimant has
9 developmental delays, he does not quantify them” but rather
10 indicated only that delays may exist.

(AR 24; see AR 264 (noting

11 that her ultimate IQ “is difficult to predict”), 507 (noting that
12 cardiac defect “may worse[n] her motor development and physical
13 stamina”), id. (noting that heart defect “likely compromise[s]
14 her general health”).)

In fact, Dr. Yano noted elsewhere that

15 because Claimant is a girl, her SGBS-related symptoms were likely
16 to be milder than her brothers’ (see AR 247), and he found her
17 developmental delays to be “mild” (AR 344).
18

That Dr. Yano’s opinion as expressed in his assessments and

19 letter was conclusory and unsupported by specific findings
20 regarding Claimant was a legitimate basis to discount his
21 opinion.

Cf. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

22 1190, 1195 (9th Cir. 2004) (“an ALJ may discredit treating
23 physicians’ opinions that are conclusory, brief, and unsupported
24 by the record as a whole . . . or by objective medical
25
26
5

Dr. Yano is a clinical geneticist, which likely explains his

27 focus on diagnostics and potential risks rather than the extent of
Claimant’s symptoms. (See AR 863 (detailing studies confirming
28 SGBS diagnosis).)
27

1 findings”); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)
2 (“The ALJ need not accept the opinion of any physician, including
3 a treating physician, if that opinion is brief, conclusory, and
4 inadequately supported by clinical findings.”).
5

Further, the ALJ found Dr. Yano’s assessments to be

6 inconsistent with the medical evidence.

(AR 24.)

Although Dr.

7 Yano in his 2009 assessment cited Claimant’s developmental delay,
8 macrocephaly, and “other major malformations including
9 diaphragmatic hernia and cardiac defects,” all consistent with
10 and likely attributable to SGBS,6 the ALJ found that those
11 “features of the disease . . . have not been disabling.”
12 (citing AR 505).)

(AR 23

Rather, the evidence showed successful

13 surgical correction of Claimant’s hernia and heart defect
14 “without complication.”7

(AR 23; see AR 157, 865-66.)

And, as

15 discussed above, the record also established that although
16 Claimant was diagnosed with mild developmental delay, varied
17 forms of therapy had enabled her to progress physically,
18 cognitively, and emotionally such that she was able to function
19 at or near the level expected for a child her age.

(See supra

20 Section V.A.3.a; see, e.g., AR 445-47, 453, 450, 472, 651-52.)
21

That Dr. Yano’s opinion was inconsistent with the “composite

22 record” was a specific, legitimate basis to discount his
23 assessments and letter.

See § 416.927(c)(4) (explaining that

24
25
26
27

6

Plaintiff’s treatment records also reflect the possibility
that her developmental delay was at least somewhat attributable to
premature birth.
(See, e.g., AR 230, 236, 462, 458 (assessing
Claimant according to her age adjusted for prematurity).)
7

Plaintiff does not challenge the ALJ’s finding that her

28 hernia and heart defect were successfully remedied.
28

1 more weight should be afforded to medical opinions that are
2 consistent with the record as a whole); Houghton, 493 F. App’x at
3 845.

Because the ALJ provided a detailed summary of the medical

4 evidence, his finding that Dr. Yano’s opinion was inconsistent
5 with the record was not, as Plaintiff contends, “insufficient”
6 “boiler-plate.”

(J. Stip. at 8); see Reddick, 157 F.3d at 725

7 (explaining that ALJ can meet requisite standard for rejecting
8 treating physician’s opinion deemed inconsistent with or
9 unsupported by medical evidence “by setting out a detailed and
10 thorough summary of the facts and conflicting clinical evidence,
11 stating his interpretation thereof, and making findings”).
12

Although Plaintiff contends that the ALJ should have

13 contacted Dr. Yano for clarification of his opinion (J. Stip. at
14 9), a duty to develop the record further is triggered only when
15 it contains ambiguous evidence or is inadequate to allow for
16 proper evaluation of the evidence.

Mayes v. Massanari, 276 F.3d

17 453, 459-60 (9th Cir. 2001) (citing Tonapetyan v. Halter, 242
18 F.3d 1144, 1150 (9th Cir. 2001)).

Here, however, it was clear

19 from the language Dr. Yano used in his assessments and letter
20 that he based his recommendation upon potential future
21 developments rather than Claimant’s established symptoms and
22 limitations.

The weight of the evidence showed that Claimant’s

23 developmental delays were mild and that she had largely overcome
24 any developmental deficit.
25

Remand is not warranted on this basis.

26
27
28
29

1
2

c.

Dr. Thompson

Plaintiff offers no argument supporting Dr. Thompson’s 2010

3 findings but instead simply complains that the ALJ “made no
4 mention in the decision of [her] assessment.”

(J. Stip. at 9.)

5 Although the ALJ did not explicitly address the 2010 assessment,
6 he did note Dr. Thompson’s opinion that Claimant was
7 developmentally delayed (AR 30), and he relied significantly upon
8 the opinion of Dr. Grossman, who expressly discounted Dr.
9 Thompson’s 2010 assessment (see AR 539-44).

Having accepted Dr.

10 Grossman’s findings, the ALJ necessarily rejected Dr. Thompson’s
11 2010 assessment.
12

Further, although Dr. Thompson found “extreme” or “marked”

13 limitations in five of the six domains, she expressly did so for
14 four of those categories based exclusively upon her review of the
15 2010 LAUSD IEP.

(See AR 516.)

Her assessment of these

16 limitations thus has no independent clinical significance.

Cf.

17 Batson, 359 F.3d at 1195 (ALJ properly discounted physician’s
18 opinion when based in part on another doctor’s records and
19 findings, “the value of which the ALJ had discounted”).

Because

20 the ALJ carefully detailed his reasons for rejecting the report
21 upon which Dr. Thompson’s assessment was almost completely based,
22 any error in his failure to explicitly address the assessment was
23 harmless.

See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050,

24 1055 (9th Cir. 2006) (error harmless if inconsequential to
25 ultimate nondisability determination); see also Howard, 341 F.3d
26 at 1012 (holding that ALJ need discuss only evidence that is
27 significant and probative).
28

When medical opinion evidence is inconclusive or
30

1 conflicting, it is solely the ALJ’s role to determine credibility
2 and resolve the conflict.

See Sample v. Schweiker, 694 F.2d 639,

3 642 (9th Cir. 1982); Morgan v. Comm’r of Soc. Sec. Admin., 169
4 F.3d 595, 601 (9th Cir. 1999) (noting that when medical reports
5 are inconclusive, “questions of credibility and resolution of
6 conflicts in the testimony are functions solely of the
7 [Commissioner]” (internal quotation marks omitted)).

If the

8 medical evidence gives rise to more than one rational
9 interpretation, the ALJ’s conclusion must be upheld.

Sample, 694

10 F.2d at 642.
11

Remand is not warranted on this basis.

12
13

d.

Dr. Grossman

Nor did the ALJ err in relying on the testimony of medical

14 expert Dr. Grossman to assess the opinion evidence.

Dr. Grossman

15 not only was a specialist in pediatrics but also had significant
16 experience in child development.

(See AR 522, 539.)

He was

17 familiar with the Social Security regulations and the
18 requirements to qualify for SSI payments.

(See AR 528, 540-41

19 (noting that Claimant’s treating practitioners may not have been
20 familiar with meanings of specific terms in Social Security
21 context, as Dr. Grossman was).)

He was, therefore, particularly

22 qualified to assist the ALJ in interpreting Claimant’s medical
23 records and offer an opinion as to her disability status, and
24 Plaintiff does not appear to dispute this.8

See § 416.927(c)(5)

25
26
27
28

8

Plaintiff objects to Dr. Grossman’s suggestion that the
extreme findings of the above-discussed practitioners were perhaps
attributable to a lack of familiarity with the terminology of the
Social Security regulations or a desire to secure services for
Claimant. (J. Stip. at 7; see AR 543.) Because he found that
31

1 (noting that more weight is generally given “to the opinion of a
2 specialist about medical issues related to his or her area of
3 specialty”); Smolen, 80 F.3d at 1285 (same); § 416.927(c)(6)
4 (medical source’s “amount of understanding of our disability
5 programs and their evidentiary requirements” is “relevant
6 factor[]” in deciding weight to give opinion);
7 § 416.927(e)(2)(ii) (noting import of consultant physician’s
8 expertise in Social Security rules).

Indeed, the Appeals

9 Council, which expressly mandated a hearing with a medical expert
10 qualified to assess Claimant’s particular symptoms and
11 limitations (AR 288), did not find the ALJ’s reliance on Dr.
12 Grossman to warrant review (AR 7-9).
13

Moreover, Dr. Grossman reviewed the entire record, provided

14 bases for his conclusions and opinion, and was available for
15 questioning by Plaintiff’s counsel.

The ALJ was thus entitled to

16 rely on Dr. Grossman’s testimony, which he found to be consistent
17 with the medical evidence.

See Morgan, 169 F.3d at 600

18 (“Opinions of a nonexamining, testifying medical advisor may
19 serve as substantial evidence when they are supported by other
20 evidence in the record and are consistent with it.”); Andrews v.
21 Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995) (greater weight may
22 be given to nonexamining doctors who are subject to examination).
23

Remand is not warranted.

24
25
26
27
28

Claimant’s practitioners provided inaccurate or unsupported
assessments of her abilities, Dr. Grossman’s speculation as to why
they did so was not relevant. In any event, a doctor’s familiarity
with the meanings of certain terms as used by the Social Security
regulations is indisputably valuable.
See § 416.927(e)(2)(ii);
§ 416.927(c)(6); SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996).
32

1 VI.

CONCLUSION

2

Consistent with the foregoing, and pursuant to sentence four

3 of 42 U.S.C. § 405(g),9 IT IS ORDERED that judgment be entered
4 AFFIRMING the decision of the Commissioner and dismissing this
5 action with prejudice.

IT IS FURTHER ORDERED that the Clerk

6 serve copies of this Order and the Judgment on counsel for both
7 parties.
8
9
10

DATED: October 29, 2014

11

______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

9

This sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
33