Furgiuele v. Commissioner of Social Security

Filing 21

ORDER AFFIRMING Administrative Decision of the Commissioner of Social Security, DENYING Plaintiff's Social Security Complaint and DIRECTING Clerk of Court to Enter Judgment for Defendant Michael J. Astrue, Commissioner of Social Security and Against Plaintiff K. F. Who Proceeds By and Through His Guardian Ad Litem, signed by Magistrate Judge Jennifer L. Thurston on 2/11/2010. CASE CLOSED. (Jessen, A)

1 2 3 4 5 6 7 8 9 10 11 K. F., by and through his guardian ad litem, Sarah F., 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, Commissioner of 15 Social Security, ) ) ) ) ) ) ) ) ) ) 16 Defendant. ) ) 17 _____________________________________ ) 18 In this proceeding, Plaintiff, by and through his guardian ad litem, Sarah F., seeks judicial 19 review of a final decision of the Commissioner of Social Security (Commissioner) denying his 20 application for Supplemental Security Income (SSI) benefits. In his October 21, 2005, 21 application, Plaintiff alleged that he had a disability due to problems with hearing, speaking, 22 communicating, and completing tasks, his short attention span and poor memory, his poor 23 coordination and his need for prompting with self care. (A.R. 170.) The parties have consented to 24 the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). 25 The decision under review is that of Social Security Administration (SSA) Administrative 26 Law Judge (ALJ) Christopher Larsen dated January 23, 2008 (A.R. 10-19). His decision was 27 rendered after a hearing held on November 14, 2007, at which Plaintiff and his mother appeared, 28 1 1:08-cv-01426-JLT DECISION AND ORDER DENYING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF K.F.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

1 and Plaintiff testified with the assistance of counsel (A.R. 10, 431-63). The Appeals Council 2 denied Plaintiff's request for review on June 2, 2008 (A.R. 2-4), and thereafter Plaintiff filed his 3 complaint in this Court on July 30, 2008. Briefing commenced on May 5, 2009, with the filing of 4 Plaintiff's brief. Defendant filed opposition on June 8, 2009, and Plaintiff's reply was filed on 5 June 23, 2009. The matter has been submitted without oral argument to the Magistrate Judge. 6 7 I. Jurisdiction Plaintiff's complaint was timely filed on July 30, 2008, less than sixty days after the

8 mailing of the notice of decision on or about June 2, 2008. 42 U.S.C. §§ 1383(c)(3) and 405(g) 9 10 II. Standard and Scope of Review Congress has provided a limited scope of judicial review of the Commissioner's decision

11 to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, 12 the Court must determine whether the decision of the Commissioner is supported by substantial 13 evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," 14 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. 15 Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a 16 reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. 17 The Court must consider the record as a whole, weighing both the evidence that supports and the 18 evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of 19 evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 20 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). It is immaterial that the evidence 21 would support a finding contrary to that reached by the Commissioner. The determination of the 22 Commissioner as to a factual matter will stand if it is supported by substantial evidence because it 23 is the Commissioner's duty, rather than the Court's, to resolve conflicts in the evidence. Sorenson 24 v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975). 25 In weighing the evidence and making findings, the Commissioner must apply the proper

26 legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review 27 the whole record and uphold the Commissioner's determination that the claimant is not disabled if 28 2

1 the Commissioner applied the proper legal standards and if the Commissioner's findings are 2 supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 3 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the 4 ALJ did not use the proper legal standard, the matter will be remanded to permit application of the 5 appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987). 6 7 III. Disability In determining disability in children with respect to SSI benefits, the SSA will consider

8 whether the child is performing substantial gainful activity. If not, the SSA must consider 9 whether an impairment or combination of impairments is severe and if severe, whether the 10 impairments meet, medically equal, or functionally equal the listings. Finally, the SSA must 11 determine whether such impairments have lasted, or are expected to last, for twelve continuous 12 months. 20 C.F.R. §§ 416.923, 416.924(a). If the child's impairment meets or functionally equals 13 an impairment in the listings and meets the durational requirement, then disability is conclusively 14 presumed and benefits are awarded. 20 C.F.R. §§ 416.924(d). If the impairment does not meet or 15 functionally equal a listed impairment or meet the durational requirement, then the child is not 16 disabled. 20 C.F.R. § 416.924(d)(2). SSI benefits are not payable until the month after the month 17 in which the claimant applied for SSI. 20 C.F.R. § 416.335. 18 Here, the ALJ found that Plaintiff, who was born on March 13, 1999, and thus was a

19 school-age child at all pertinent times, was not engaged in substantial gainful activity and had 20 severe impairments of attention deficit/hyperactivity disorder, borderline intellectual functioning, 21 learning disorder not otherwise specified and fetal-alcohol effects. (A.R. 13.) The ALJ concluded 22 that Plaintiff had no impairment or combination thereof that met, medically equaled, or 23 functionally equaled the listed impairments. Accordingly, the ALJ determined that he was not 24 disabled. 25 Plaintiff argues 1) the ALJ erred in not expressly or "facially" (Pltf.'s Brief, p. 5)

26 addressing the question of whether Plaintiff's impairments equaled listing 112.05 for mental 27 retardation; and 2) the ALJ erred in rejecting objective testing and opinion evidence that Plaintiff 28 3

1 asserts established that Plaintiff had marked dysfunction in multiple areas. 2 3 IV. Medical Evidence of Functioning The ALJ considered Plaintiff's entire medical history, including that which preceded

4 October 21, 2005, the date of Plaintiff's application for benefits. (A.R. 10.) 5 In May 2003, senior counselor Sidney R. Jackson II of the Central Valley Regional Center

6 (CVRC) assessed Plaintiff, who was four years old at the time, for speech that reflected impaired 7 articulation and significant delays in development. (A.R. 55-57, 255-57.) Audiologic evaluation 8 reflected hearing in both ears that was within normal limits. (A.R. 260-61.) In June 2003, 9 Matthew A. Battista, Ph.D., evaluated Plaintiff to determine eligibility for CVRC services. (A.R. 10 421-24.) Plaintiff's mother reported that he had communication difficulties, hyperactivity, 11 difficulty sharing and interacting with other children, greater difficulty behaving with the mother, 12 and attention-seeking behaviors. Id. However, the mother reported that Plaintiff colored, drew, 13 and engaged in age-appropriate forms of imaginary play with toys and games with a younger 14 sibling. (A.R. 422) 15 The examiner observed Plaintiff's deteriorating behavior during the session that, in his

16 opinion, reflected oppositional conduct as distinct from being related to a level of activity or 17 cognitive problem. (A.R. 422-3) The examiner determined that Plaintff's test results on the 18 Stanford-Binet Test of Intelligence (4th ed.) were verbal reasoning, 71; abstract/visual reasoning, 19 89; quantitative reasoning, 88; short-term memory not computed, with a partial test composite 20 score of 80. The results of the Vineland Adaptive Behavior Scale were communication domain, 21 standard score of 71, age-equivalent of 1-10; daily living skills domain, 66, age equivalent 2-5; 22 socialization domain, 84, age equivalent 1-11; and motor skills domain, 84, age equivalent 3-5, 23 with an adaptive behavior composite of 66. (A.R. 423.) Jackson believed that Plaintiff's level of 24 activity, sustained attention when structured and social functioning, aside from conduct issues, 25 were relatively intact. Jackson opined that Plaintiff's below-average verbal skills and unruly 26 behavior did not appear to be cognitively based or due to intrinsic social deficit or problems with 27 attention/level of activity. Rather Jackson believed that they were conduct-discipline-based issues. 28 4

1 Jackson provided a diagnosis as mixed receptive expressive language disorder. He recommended 2 speech and language evaluation, enrollment in pre-school with focus on enhancing 3 communication ability and parenting classes for the mother. (A.R. 424.) 4 In July 2003, a multi-disciplinary team that reviewed Plaintiff's case determined that

5 Plaintiff was not eligible for CVRC. (A.R. 251-52.) Dr. Pean Lai evaluated the psychological and 6 social information in the chart and determined that Plaintiff did not have mental retardation 7 although Dr. Battista determined that he had mixed receptive and expressive language disorder. 8 (A.R. 251.) 9 In October 2003 a note by Sheri Rossi, M.A., L.M.F.T., indicated that Plaintiff's mother

10 had called concerning Plaintiff's aggressive and hurtful behavior to his siblings, and in November 11 2003, a plan of care was created. (A.R. 391-94.) A couple of therapy sessions occurred, but due to 12 repeated failures to attend, the file was to be closed by January 2004. (A.R. 383-90.) 13 In November 2003, Plaintiff was evaluated by the County of Fresno Department of

14 Children and Family Services (DCFS). (A.R. 407-18.) Plaintiff's mother complained of 15 hyperactivity, distraction, and aggressive and self-destructive behavior. The Licensed Clinical 16 Social Worker diagnosed Plaintiff with attention deficit/hyperactivity disorder, not otherwise 17 specified and disruptive behavior disorder, not otherwise specified. (A.R. 416) The LCSW 18 determined Plaitniff's global assessment of functioning (GAF) score was 60. (A.R. 416.) The 19 LCSW felt that part of Plaintiff's hyperactivity and oppositional behavior resulted at least in part 20 from a lack of consequences for misbehavior. Id. The LCSW recommended individual, family 21 and collateral therapy. (A.R. 416-17.) 22 In January 2005, Stephen Sacks, M.A., CCC-SLP, Speech/Language Specialist, evaluated

23 Plaintiff's phonological processes. Tests results revealed that Plaintiff had an articulation deficit, 24 but that his voice and fluency were adequate. Sacks recommended that Plaintiff undergo speech 25 therapy. (A.R. 109-10.) 26 In July 2005, David L. Hellwig Ph.D., from DCFS, performed a clinical assessment of

27 Plaintiff, who was six years old at the time. (A.R. 402-06, 395-96.) Plaintiff's mother reported 28 5

1 Plaintiff displayed anger and impulsive behavior. Dr. Hellwig's mental status exam revealed that 2 Plaintiff had poor articulation, memory, comprehension, judgment, and insight. He diagnosed 3 Plaintiff as having ADHD, depressive disorder, not otherwise specified; disruptive behavioral 4 disorder, not otherwise specified. Dr. Hellwig wanted to rule out pervasive developmental 5 disorder, anxiety disorder, PTSD, ODD and intermittent explosive disorder. Dr. Hellwig 6 determined that Plaintiff had a GAF score of 50. Dr. Hellwig noted that a strength of Plaintiff's 7 was his ability to follow the clinician's directives during the assessment. (A.R. 405, 397.) 8 In October 2005, G. Michael Bishop, Ph.D., L.M.F.T., wrote to Plaintiff's mother to

9 provide a brief summary of the July assessment of Plaintiff. (A.R. 250.) Dr. Bishop related that 10 the purpose of the assessment was to determine the seriousness of Plaintiff's symptoms of 11 difficulties sustaining attention, being easily distracted and hyperactive, being easily frustrated and 12 experiencing strong temper outbursts, and exhibiting opposition to adult directives and difficulty 13 regulating emotions and impulses. After reviewing a previous assessment and treatment history, 14 Dr. Bishop determined that the symptoms were seriously disrupting Plaintiff's academic and 15 family adjustment. He recommended outpatient therapy and diagnosed the boy with symptoms 16 consistent with combined type, attention deficit hyperactive disorder. (A.R. 250.) 17 On August 12, 2005, the mother and Plaintiff had a counseling session at which time,the

18 therapist and mother determined that she would engage in Behavior Management training for 19 ADHD behaviors, and to discuss the use of medications and possible referral. (A.R. 381.) The 20 record indicates that the mother attended four sessions. (A.R. 374-380) On October 5, 2005, the 21 therapist determined that he would meet with the parent on an as-needed basis. (A.R. 374-78.) 22 In October 2005, Dr. Razia Sheikh prescribed Concerta to addresss Plaintiff's ADHD

23 diagnosis. (A.R. 304.) 24 In December 2005, Dr. Sachs reported that Plaintiff showed excellent progress since

25 January 2005, when speech therapy had commenced. His articulation disorder did not interfere 26 with his being understood ninety per cent of the time. He could follow single-step instructions 27 and his condition did not cause problems in academic performance, socializing, or deficiencies in 28 6

1 maintaining concentration, persistence, or pace. Dr. Sachs refused to report his previous test 2 scores because "Initial reports are not longer appropriate as he has improved so much." Dr. Sachs 3 reported that Plaintiff would be discharged within the next few months. (A.R. 359-61.) 4 In January 2006, the speech therapist assessed Plaintiff's present levels of educational

5 performance and opined that Plaintiff had made significant improvement in his speech and was 6 able to say correctly almost all of his previously erroneous sounds. (A.R. 103.) 7 In January 2006, Plaintiff's mother reported to therapist Dr. Bishop that Plaintiff was

8 getting medication from his pediatrician and was doing much better. However, the mother wanted 9 to transfer his care from the pediatrician to the clinic. This would necessitate a transfer of the case 10 to a new therapist due to Dr. Bishop's change to other programs. Dr. Bishop noted that the mother 11 "appears to still want assistance although child is doing much better now." (A.R. 313.) 12 In late February 2006, licensed mental health clinician Paula Harris, noted that Plaintiff

13 had been taking Concerta for two months. He had demonstrated dramatic improvement in his 14 Plaintiff's behavior and ability to focus and learn at school. His mother continued to complain 15 about his behavior at home, though. Harris planned weekly therapy sessions to help Plaintiff, who 16 had been abandoned by his father, with his anger and feelings of loss and abandonment. (A.R. 17 312.) 18 At a mid-March therapy session, Plaintiff drew good pictures, successfully played an

19 unfamiliar card game after catching on very quickly, and exhibited an affect matching excitement; 20 he warmed quickly to the therapist despite being shy. The plan was to work on developing trust so 21 that they could begin to deal with his behavior problems, which were primarily at home. (A.R. 22 310.) In later March the therapist, who was leaving the county, reported that Plaintiff was a bright 23 child who might appear to be slow if one did not take time to know him. Plaintiff continued angry 24 outbursts at home, but not at school. Harris planned to transfer the case to a permanent therapist 25 and recommended support with parenting skills for the mother. (A.R. 309.) 26 In March 2006, Plaintiff's pediatrician refilled his ADHD prescription. The doctor noted

27 that Plaintiff was "Doing very well." (A.R. 306.) The doctor continued to refill the medication 28 7

1 throughout 2006. (A.R. 305.) 2 On May 26, 2006, consulting examiner Lynne Leeper Reinfurt, Ph.D., DABPS, reviewed

3 the previous assessments and Plaintiff's discharge from speech therapy around December 2005. 4 She completed a psychological evaluation and examination of Plaintiff at the request of the 5 Department of Social Services Disability Evaluation Division to obtain information for 6 determining the eligibility of Plaintiff for disability services. (A.R. 354-56.) Plaintiff's mother 7 reported clumsiness, poor management of personal hygiene and activities of daily living, 8 moodiness, failure to get along well with others, and tantrums. Dr. Reinhurt noted that Plaintiff 9 had not been receiving special services in his first grade classroom and he had good academic 10 abilities. He was uncooperative at home and struggled with his siblings. Plaintiff had taken 11 Concerta before the appointment. He was alert, oriented for person, with adequate attention and 12 concentration, adequate knowledge, concrete thought processes, and cognitive ability probably 13 within the low average range with no evidence of disordered thinking or bizarre ideation. Speech 14 was clear and coherent; initially immature affect and manner changed in response to basic 15 interventions and he was very responsive and worked quite well throughout a lengthy evaluation. 16 Generally somber, Dr. Reinbhurt noted that he displayed a "dimpled smile now and then," that he 17 had adequate rapport and rather good frustration tolerance. He reported that he liked school and 18 had friends there. The assessment was considered an adequate estimate of Plaintiff's capabilities. 19 (A.R. 354-55.) 20 Dr. Reinfurt administered the Wechsler Intelligence Scale for Children-IV (WISC-IV),

21 with a composite score for a full scale IQ of 78, indicating a borderline to low average range of 22 cognitive functioning, with subtest scaled scores ranging from five to nine. His prorated verbal 23 comprehension index score was 89, his prorated perceptual reasoning index score was 82, his 24 working memory index score was 83 and his processing speed index was 75. Plaintiff had 25 problems focusing his attention during timed tasks requiring quick, accurate scanning, sequencing 26 or discrimination of simple visual information. (Id. p. 355.) 27 28 8 On the Wide Range Achievement Test (third ed.), Plaintiff produced academic

1 achievement scores ranging from first to third grade reading, with effective use of phonetic 2 strategies. Dr. Reinhurt noted that Plaintiff was weaker in number concepts with his arithmetic 3 scores at the first grade equivalent. The Bender Gestalt Test II (second ed.) produced a standard 4 score of 107, which was average. However, a score of 85 on recall placed him in the low average 5 category and Dr. Reinhart indicated that this might reflect an attentional problem. (Id.) 6 Plaintiff's scores on the Vineland Adaptive Behavior Scales, which test communication,

7 daily living skills, and socialization, were very low to average. Plaintiff's academic ability and 8 socialization skills were quite strong although his management of activities of daily living was 9 very deficient. Dr. Reinfurt wondered if the low score might reflect low expectations from the 10 family as well as ineffective management of behavior. (A.R. 355.) 11 Dr. Reinfurt's diagnosis was combined-type ADHD with relational problem not otherwise

12 specified. (A.R. 356.) Dr. Reinfurt opined that the evaluation suggested that some control over 13 Plaintiff's combined-type ADHD had been achieved. Also, she believed that Plaintiff's 14 intellectual functioning was in the low average range and he was learning academic skills. 15 Plaintiff's demonstrated quick receptivity to basic behavior management techniques suggested 16 that he could be function at a more mature level and would have more stable moods if his mother 17 and teachers were employing such tools. (A.R. 356.) Plaintiff had the ability to understand and 18 respond to requests, instructions and questions at a nearly age-appropriate level. Plaintiff's 19 communication skills involving the initiation, use, and comprehension of language were 20 somewhat below average. Dr. Reinfurt recommended involvement in physical activity typical of 21 Plaintiff's age group, management of his immature behaviors, and consideration of an Individual 22 Education Plan or a 504 plan in the school setting. (Id.) 23 State agency psychiatrist, Dr. H. Bilik completed a childhood disability evaluation of

24 Plaintiff on July 24, 2006, and opined that Plaintiff's ADHD, disruptive behavior disorder, speech 25 delay, and receptive/expressive language delay were severe but did not meet, medically equal, or 26 functionally equal the listings. (A.R. 345-53.) Dr. Bilik found less than marked limitations in all 27 six domains. With respect to interacting and relating with others, Dr. Bilik noted that there was 28 9

1 less than a marked limitation in speech, relying on the improvement in Plaintiff's speech after 2 therapy in 2005 and 2006 which reflected clear and coherent speech with normal vocal tone and 3 prosody. (A.R. 347.) 4 Consulting, non-examining practitioner Patti Solomon-Rice, M.A., certified child

5 counselor and speech and language therapist, conducted a speech and language review of Plaintiff 6 on August 3, 2006. She concluded that the evidence permitted a determination that Plaintiff had 7 less than marked impairments in both speech and language as well as in all domains. Her 8 signature appears on the same page as that of H. Bilik. (A.R. 353, 345-50, 346.) 9 On January 10, 2007, Plaintiff, then a second grader, was evaluated by Joan Allen,

10 L.C.S.W., and senior licensed mental health clinician at the county's DCFS, at the request of 11 Plaintiff's mother. The mother was reporting that Plainiff had angry outbursts, was argumentative 12 and had self-destructive behavior, distractibility causing failure to complete tasks, restlessness, 13 temper tantrums, impulsiveness, and aggression, and difficulty playing with peers, who bullied 14 him. (A.R. 314-23.) The mother reported that Plaintiff lied and stole, got into trouble, denied his 15 mistakes or blamed others, failed to finish things, was easily frustrated, was childish, and did not 16 like rules. (A.R. 308.) 17 Allen noted that Plaintiff's history included abandonment by his father, two years of

18 homelessness that interfered with therapy in 2003 and 2004, therapy for half a year in 2005 and 19 2006, and medication with Concerta. Allen observed that Plaintiff's appearance, speech, and 20 behavior were normal. His thought was logical, goal-directed, and coherent with content that was 21 within normal limits. Allen opined that Plaintiff's immediate, short-term, remote, and long-term 22 memory were intact and his abstraction, interpretation, judgment, insight, calculations, and 23 general fund of information were fair. Allen felt that Plaintiff was cooperative but guarded. She 24 noted that his mood was calm, angry, worried, and irritable with frequent anger and annoyance 25 over trivial matters. Plaintiff's mother stated that Plaintiff had no affect, which caused difficulty in 26 recognizing his feelings. (A.R. 320.) Plaintiff was oriented, and he denied hallucinations or 27 delusions. With respect to medical necessity, Allen believed that there was probability of 28 10

1 significant impairment in living arrangement, health, social support, and daily activities. (A.R. 2 321.) Allen's diagnosis was ADHD, combined type, rule out oppositional defiant disorder, with a 3 GAF score of 60. (A.R. 314, 321.) Allen believed that Plaintiff's strengths were that he was easily 4 engaged and responsive to questions. However, his special status situation was poor impulse 5 control. Allen's clinical assessment summary noted that Plaintiff demonstrated intermittent 6 disruptive behavior in school and numerous behavioral problems with aggression towards younger 7 siblings, difficulty getting along with peers, disruptive behavior at home, poor judgment, 8 arguments with and lying to his parent, externalization of blame, low frustration tolerance, and 9 poor self-esteem. Allen's treatment plan was to reduce Plaintiff's angry outbursts from daily to 10 two to three times a week via medication, outpatient services for Plaintiff and the family, and 11 parenting classes for Plaintiff's mother. 12 13 On February 6, 2007, Dr. Sheikh refilled Plaintiff's Concerta for ADHD. (A.R. 303.) Between February 5, 2007, and October 12, 2007, Plaintiff underwent rehabilitation

14 counseling with Pierre Xiong, CMHS II, to help reduce angry outbursts and oppositional, defiant 15 behaviors. (A.R. 249-197.) On numerous occasions, Plaintiff's mother failed to communicate 16 about scheduling appointments or missed sessions. (A.R. 235, 231 [March 2007, a "number of 17 missed sessions"], 232, 231 [mother chose to postpone therapy until anger management was 18 completed], 228 [notes concerning mother's lack of cooperation and result of less frequent 19 services], 214, 210, 208, 207, 206.) Xiong also met with Plaintiff's mother to encourage her to 20 continue to give Plaintiff the support he needed. (A.R. 244.) Plaintiff was cooperative and 21 followed directions well. (A.R. 243, 236, 232, 227, 225, 223.) Sometimes he had trouble focusing 22 on tasks and following directions and needed redirection and encouragement to stay on track. 23 (A.R. 239, 225, 223, [distraction still an issue], 215 [boundaries and distraction were issues].) 24 Xiong recommended close supervision of Plaintiff's behavior at home. (A.R. 238.) Plaintiff 25 reported improvement in his relationships with his peers at school and eventually his siblings, and 26 an improved ability to focus on tasks, listen to his teacher, cope with anger, and participate in 27 class activities. (A.R. 232-33, 227.) 28 11

1

In April and May 2007, Plaintiff's mother reported improvement at home but continuing

2 problems with aggression and completion of tasks at school. (A.R. 226, 224.) In August 2007 3 (soon after Plaintiff had begun Risperdal in addition to Concerta), Plaintiff reported that he could 4 not wait until school started again. (A.R. 209.) He seemed to follow directions a lot better, had 5 good eye contact, participated in the session well and had a better understanding of his limits. 6 (A.R. 209.) However, in September 2007, Plaintiff's mother reported that, after having missed the 7 last few rehabilitation counseling sessions, Plaintiff had engaged in worsening behavior, with 8 defiance, disruption, aggressive and immature behavior. and refusal to groom himself or complete 9 tasks. The mother reported also that the teacher had called twice about Plaintiff's disruptive, 10 inattentive behavior and refusal to complete his tasks. (A.R. 204.) Because Plaintiff's mother's 11 work interfered with her bringing him to therapy, the therapist agreed to begin seeing him at 12 school. (A.R. 204.) Plaintiff reported improvement with the exception of getting in trouble once in 13 class; it was noted that he had good eye contact and a better understanding of his limits. (A.R. 14 203.) 15 By late September 2007, Plaintiff reported to Xiong that he was doing a lot better and was

16 able to groom himself and get ready for school for the last few days without asking by his mother. 17 He continued to have problems listening to his teacher, completing his tasks, and getting angry 18 because he did not understand the work sometimes, and no one helped him. (A.R. 199.) By 19 October 2007, Plaintiff reported that he was less angry because he behaved better and had better 20 communication with his teacher. He reported that he asked for help and was able to complete his 21 work and turn it in almost every day. (A.R. 197-98.) 22 On February 24, 2007, consulting, examining psychiatrist Dr. Ekram Michiel evaluated

23 Plaintiff after reviewing medical records and obtaining a history from Plaintiff's mother. The 24 mother reported to Dr. Michiel that Plaintiff had only started to speak a year previously, used to 25 stay alone and would not communicate with the family, did not show any emotions, had angry 26 outbursts and fights and could not focus or stay still, despite a year of medication with Concerta. 27 The mother reported that the medication helped Plaintiff's hyperactivity but did not cure his 28 12

1 inability to concentrate. (A.R. 283-85.) Plaintiff's hobby was reading. When Dr. Michiel met with 2 Plaintiff, initially he was laying down under the desk and did not want to come out. When he 3 finally emerged, was hyperactive and went through all the paper on the examiner's desk and Dr. 4 Michiel could not involve him in a conversation. Based on only history and observation, Dr. 5 Michiel was "leaning to" (A.R. 284) the diagnosis of autistic syndrome based on delayed speech, 6 isolated manner of behavior, and inability to communicate socially. However, Dr. Michiel noted 7 that another "possible diagnosis" was attention deficit hyperactivity syndrome, based on his taking 8 Concerta, which had helped a little. Dr. Michiel determined that Plaintiff's GAF score was 65. Dr. 9 Michiel stated that he believed that Plaintiff could handle his daily activities, but he needed 10 special education and attention and social therapy. However, Dr. Michiel noted that it was very 11 difficult to assess his cognitive skills because of his resistance to getting involved in the interview. 12 (A.R. 283-84.) 13 On April 18, 2007, non-examining state agency psychiatrist J. A. Collado, M.D., reviewed

14 all the evidence in the file and the assessment of Patti Solomon-Rice conducted on August 3, 15 2006, and expressly affirmed the assessment of August 2006. (A.R. 275-78.) 16 On June 6, 2007, Plaintiff reported that his medication was somewhat effective but that he

17 experienced sleep disturbance on Concerta. (A.R. 222.) 18 On June 6, 2007, Dr. Joseph Alimasuya, a child psychiatrist at Fresno County Mental

19 Health Department (FCMH), performed a mental status examination of Plaintiff upon the referral 20 of therapist Xiong for the purpose of medication evaluation. (A.R. 217-21.) Plaintiff was alert, 21 oriented times two, with fair hygiene, poor eye contact, euthymic mood, tight thought 22 associations, impaired insight, poor judgment, poor memory and concentration, impaired attention 23 span, impulsivity, and distractibility. Dr. Alimasuya found that Plaintiff was not irritable or 24 agitated but he was anxious. Plaintiff was not in special education programs at school. Dr. 25 Alimasuya diagnosed ADHD, learning disorder, fetal alcohol effects, possible borderline 26 intellectual functioning and an additional notation involving something illegible that was 27 intermittent. (A.R. 221.) The GAF was 50. (A.R. 221.) The plan was to continue psychotherapy, 28 13

1 Concerta, and Risperdal. (A.R. 221.) 2 On July 25, 2007, Plaintiff reported that his medication was effective but that it caused

3 him to have trouble falling asleep. (A.R. 213.) 4 On July 25, 2007, Dr. Linda Edhere-Ekezie, of the county's DCFS, children's mental

5 health division, completed an assessment of Plaintiff in connection with his response to a change 6 in medication (adding Risperdal) and lab results. Plaintiff reported improvement in response to 7 the medication change and medication compliance, with normal sleep. Dr. Edhere-Ekezie found 8 Plaintiff's cognition, orientation, thought content and mood were normal. She found that 9 Plaintiff's affective range was flat, that he had latent speech and that his insight and judgment 10 were impaired. However, Plaintiff was cooperative and alert with an organized thought process. 11 Dr. Edhere-Ekezie determined that Plaintiff had average intelligence (with a note of a question 12 mark preceding the words "borderline intellectual functioning"). Dr. Linda Edhere-Ekezie's 13 diagnosis was Axis I, attention deficit disorder with hyperactivity; intermittent explosive disorder, 14 learning disorder not otherwise specified and fetal alcoholic effects. On Axis II, she found 15 borderline intellectual functioning, with a GAF score of 55. Dr. Edhere-Ekezie's plan was to 16 medicate Plaintiff with Concerta and Risperdal and to have laboratory tests done. (A.R. 211.) 17 On September 27, 2007, Plaintiff's mother reported that the medication had a good effect

18 without side effects. (A.R. 202.) 19 On September 27, 2007, Dr. Edhere-Ekezie reassessed Plaintiff's response to medication

20 and recorded mental status exam results that were consistent with her earlier evaluation with the 21 exception that Plaintiff's speech was normal. The diagnoses remained the same. (A.R. 200.) Dr. 22 Edhere-Ekezie concluded that Concerta was not effective and should be discontinued. Instead, 23 she started Plaintiff on Focalin to control his ADHD, increased the Risperdal for better mood 24 control and reminded Plaintiff's mother a second time to obtain lab work for Plaintiff labs and for 25 him to undergo an EKG. (A.R. 201.) A medication list from 2007 reflected that Plaintiff took 26 Risperdal at bedtime to help him sleep and Focalin, prescribed in October 2007, during the day for 27 ADHD. (A.R. 62, 64.) 28 14

1 2 3

V. Lay Evidence of Functioning A. Non-testimonial Evidence A school district form dated January 14, 2005, reflected that Plaintiff would spend ninety-

4 four percent of his time in general education and six percent in special education. (A.R. 111.) One 5 of two deficiency notices in the record issued on September 5, 2005, was for unsatisfactory 6 homework, daily work and lack of a serious approach in studies due to talking to others and 7 failure to return homework daily. (A.R. 83, 188.) A team meeting with Plaintiff's mother reflected 8 that Plaintiff was on grade level but returned only five of twenty homework assignments. It noted 9 also that Plaintiff was unfocused, easily distracted, and lacked organizational skills. Because he 10 had been diagnosed with ADHD, the report suggested that Plaintiff obtain medication and that the 11 homework should be put on a point system to improve consistency. (A.R. 81-82, 89-92.) 12 In December 2005, Plaintiff's mother stated in a function report that Plaintiff had

13 difficulty speaking, used little or no facial expressions, had a short attention span and could not 14 perform a three-step command. She reported also that he lacked coordination, was bullied by 15 children and tended to play with younger children. The mother stated that Plainiff needed 16 prompting to take care of his hygiene, did not complete tasks, was socially awkward and did not 17 appear to grasp consequences of actions. (A.R. 144-53.) 18 Report cards for Plaintiff's first grade year (2005-06) reflected that in the first quarter,

19 Plaintiff was reading at the basic level but was highly distracted to the point of inability to keep up 20 in class. Likewise, the report cord noted that Plaintiff's homework was not regularly returned. In 21 the second quarter, the teacher noted a tremendous amount of progress since Plaintiff began taking 22 medication, with reading at the advanced level. However, the teacher reported that Plaintiff's 23 tardiness for school in the morning was a problem. In the third quarter, the report card noted that 24 Plaintiff continued to read at the advanced level and that he did well. Similarly, in the fourth 25 quarter, Plaintiff had done an outstanding job, but the prescription for his medication needed to be 26 filled promptly. Also, the teacher noted that Plaintiff needed to work on his fine motor skills. 27 (A.R. 85.) 28 15

1

In January 2006, forms from the individualized education program (IEP) reflected that

2 Plaintiff did not meet eligibility criteria for disabilities and general education was chosen as the 3 service option for Plaintiff's academic, non-academic, and extracurricular programs and activities. 4 (A.R. 100.) 5 Plaintiff's first grade teacher, who at the time had known Plaintiff for six months,

6 completed a questionnaire in which she noted that Plaintiff was reading at beginning first level, 7 late kindergarten math, and beginning first or late kindergarten written language. (A.R. 364-71, 8 364.) The teacher noted that Plaintiff had a serious problem in expressing ideas in written form, 9 obvious problems comprehending oral instructions and math problems, understanding and 10 participating in class discussions, learning new material, recalling and applying previously learned 11 material and applying problem-solving skills in class discussions. He had slight problems with 12 comprehension of vocabulary, written material, and oral explanations. When he was not on 13 medication, he was bothersome and unable to work, lacked self-control and the ability to sit still, 14 and had many verbal altercations with peers in and outside of class. (A.R. 365.) With respect to 15 attending and completing tasks, he had serious problems with organization, completing 16 assignments, working without distracting himself or others, and working at a reasonable pace. 17 (A.R. 366.) The teacher indicated that Plaintiff had obvious problems paying attention, focusing, 18 and completing work without mistakes, and slight problems with carrying out single-step 19 instructions, waiting to take turns, and changing activities. (A.R. 366.) 20 On the other hand, Plaintiff had no serious problems interacting and relating with others

21 but had obvious problems with playing cooperatively with others, making and keeping friends, 22 having conversations, interpreting facial expressions and body language, and using adequate 23 grammar and vocabulary. Plaintiff's speech was difficult to understand but the teacher noted that 24 Plaintiff was seeing a speech instructor twice a week at that time. (A.R. 367-68.) In the domain of 25 moving about and manipulating objects, Plaintiff had very weak fine motor skills and had obvious 26 problems moving and manipulating things, demonstrating strength and coordination, managing 27 pace of activities, and integrating and executing controlled motor movements. (A.R. 368.) With 28 16

1 respect to caring for himself, Plaintiff had obvious problems identifying and appropriately 2 asserting emotional needs, using appropriate coping skills to meet daily demands of the school 3 environment and knowing when to ask for help. The teacher noted that Plaintiff had slight 4 problems handling frustration appropriately, being patient, and using good judgment. (A.R. 369.) 5 The teacher had seen an improvement in Plaintiff's behavior since he had begun taking 6 medications for ADHD. (A.R. 370.) 7 In March 2006, Plaintiff was declared a habitual truant for seven absences between August

8 2005 and February 2006 and the mother was notified that Plaintiff's attendance at school was 9 needed for his success. (A.R. 75-77.) The school had referred the matter to the District Attorney. 10 The school attendance presented the mother a contract dated March 17, 2006, that required the 11 mother to have Plaintiff at school no later than 7:40 a.m. and gave her other information about her 12 obligation to ensure that Plaintiff was in school. However, the contract was not signed by the 13 mother and it is not clear that she attended the March 17, 2006 meeting on this topic. (A.R. 80.) In 14 December 2006, Plaintiff's mother reported to the County of Fresno's Department of Children 15 and Family Services (DCFS) that Plaintiff was overly active, impulsive, easily distracted, and 16 argumentative. She reported that he hit children and had temper outbursts and difficulty with 17 school work. He did not complete homework, had low self-esteem, lacked friends, was self18 destructive, woke up at night and was shy. However, the mother reported that Plaintiff's 19 problems had not increased. (A.R. 324-27.) She noted that he was a smart, funny, sweet person 20 and very loving when he wanted to be. (A.R. 327.) 21 22 In January 2007, the school continued to monitor Plaintiff's attendance. (A.R. 74.) Report cards for second grade (2006-07) reflected mostly satisfactory citizenship, with

23 problems following directions and with social skills, such as showing self-control and cooperation 24 on the playground, which improved at the end of the year. His teacher reported that he struggled 25 with following directions, paying attention, and showing self-control but she noted that he could 26 put more effort into his work and was a capable young man. By the end of the year his progress 27 was average except for his math, which was a "D+" and he still struggled with his social skills. 28 17

1 (A.R. 86.) 2 The second of two deficiency notices was issued on January 19, 2007, and was for

3 unsatisfactory test scores in reading due to Plaintiff's rushing on his tests. The teacher noted that 4 Plaintiff was very capable of doing better. (A.R. 83.) 5 Diedre Lowe-Brooks completed a teacher questionnaire on March 6, 2007, after Plaintiff

6 had been in her class of seventeen students since August 2006 (approximately seven months). 7 (A.R. 286-93, 294-301.) In the second quarter, Plaintiff had been absent once and tardy eight 8 times. (A.R. 286.) In the domain of acquiring and using information, Plaintiff had no problem or a 9 slight problem, when properly and regularly medicated, with understanding school and content 10 vocabulary, comprehending and doing math problems, and expressing ideas in written form. (A.R. 11 287.) With respect to attending and completing tasks, Plaintiff had no problem carrying out 12 single-step instructions, and a slight problem carrying out multi-step instructions, waiting to take 13 turns, completing class and homework assignments, and working at a reasonable pace. The 14 teacher noted that he had an obvious problem paying attention when spoken to directly, sustaining 15 attention during play and sports activities, focusing long enough to finish assigned activities or 16 tasks, changing from one activity to another without being disruptive, organizing things, 17 completing work accurately without careless mistakes, and working without distracting others. 18 Many of the problems manifested themselves daily. The teacher noted that Plaintiff was very 19 capable but just had more difficulty when he was not able to take advantage of the medications. 20 (A.R. 288.) 21 With respect to interacting and relating with others, the teacher noted that daily Plaintiff

22 had slight problems playing cooperatively with others, making and keeping friends, seeking 23 attention appropriately, following rules, and respecting and obeying adults. He had no problem 24 expressing anger appropriately, asking permission appropriately, relating experiences and telling 25 stories and using language appropriate to the situation and listener, introducing and maintaining 26 relevant and appropriate topics of conversation, taking turns in a conversation, interpreting the 27 meaning of facial expressions, or using adequate vocabulary and grammar to express thoughts and 28 18

1 ideas in general, everyday conversation. Again, Plaintiff was able to do well in this area, but being 2 appropriately medicated was necessary. (A.R. 289.) Plaintiff had no problems moving about and 3 manipulating objects. (A.R. 290.) With respect to caring for himself, Plaintiff had no problems 4 being patient when necessary, taking care of hygiene or grooming, using good judgment 5 concerning personal safety and dangerous circumstances, appropriately asserting emotional needs, 6 responding appropriately to changes in his own mood, such as calming himself, and knowing 7 when to ask for help. He had a slight problem handling frustration appropriately (occurring 8 weekly) and using appropriate coping skills to meed daily demands of the school environment 9 (daily). The teacher noted that this was the area where she believed that it was not that Plaintiff 10 was not being cooperative; rather, the teacher just did not know if it was being followed through 11 with at home by the mother on a daily basis. (A.R. 291.) 12 A teacher's questionnaire, completed in mid-October 2007 when the teacher had known

13 Plaintiff for seven weeks, stated that Plaintiff was a very intelligent boy who was capable of doing 14 the work, and when he did the work, it was usually pretty good; however, he had marked 15 problems in the ability to stay seated or still, listen and remain attentive, organize, concentrate on 16 schoolwork, finish things he started, stick to a play activity, learn new skills and keep up with 17 peers, and acknowledge his own mistakes. The teacher noted that he had an extreme problem 18 with thinking before acting. (A.R. 65-70.) The teacher had observed that Plaintiff agreed to 19 participate in group situations but did not like to do so when he did not think he was good at the 20 activity. Also, the teacher reported that sometimes he was aggressive verbally or physically 21 towards a peer. As an example, the teacher reported that once the Plaintiff had tackled a child for 22 no apparent reason. (A.R. 68.) He made noises, bothered other students, and could not sit still 23 which, the teacher noted, had been reported by a teacher previously. (A.R. 69.) 24 Plaintiff's student assessment profile showed that he was below basic subject proficiency

25 in state assessments in English Language Arts in test year 2007. Another set of assessments 26 reflected that he was below basic level in math. (A.R. 71-72.) 27 28 19 B. Testimony at Hearing

1

Plaintiff testified that he was eight years old and was in third grade, was good at writing

2 stories and considered his whole class to be his friends. He liked to play soccer with classmates at 3 recess and for PE. He testified that he could dribble and control the ball. He also played 4 basketball and had played video games. Also, he rode his bike. (A.R. 437, 439-42.) 5 His mother testified that Plaintiff, who was eight years old and in third grade, was in

6 regular classes, had a hard time interacting with children his age, was immature socially, repeated 7 things, and forgot things easily. (A.R. 445-46.) He walked, talked, and achieved full bladder 8 control late. (A.R. 446-47.) He had outbursts in which he quickly became really angry and 9 screamed at the top of his lungs for twenty or thirty minutes and he would stomp off and hit 10 whoever was in his way. (A.R. 447-48.) The mother reported that Plaintiff would bang his head 11 on the wall or fidget with things and he became physical with the other kids daily. Id. The mother 12 testified that none of her attempts at discipline worked. Plaintiff's mother reported that she "just 13 let him have it" because she didn't want to spank him. (A.R. 449.) The mother reported that 14 Plaintiff was seeing a counselor whom he had seen once a week for an hour for seven or eight 15 months and it did help with Plaintiff's behavior. She reported that the counselor could calm him 16 down and keep him level. (A.R. 450.) The mother reported that Plaintiff participated in treatment. 17 (A.R. 450.) Plaintiff took Focalin and had been taking it for only about a month. She testified that 18 previously he had taken Concerta for a year or so. He also took "Respiritol [phonetic]." Plaintiff 19 had been doing "pretty good" on Focalin. (A.R. 451.) 20 Up until about a month before the hearing, the mother reported that the school would call

21 because Plaintiff had disrupted the learning environment for the other students by making odd 22 noises. When told to stop, Plaintiff would hit his desk and once threw a chair and screamed. The 23 mother testified that the school had no discipline regimen. Instead, the school called Plaintiff's 24 mother for her to talk to him. The mother reported that Plaintiff was suspended about a couple of 25 months previously for one day for having scratched or hit a boy on the playground. The mother 26 reported that she could not remember how the event started or what triggered it. (A.R. 452-53.) 27 Plaintiff's mother thought he had been suspended twice in the present semester, that he had ten 28 20

1 total "marks," or event, warranting discipline, that semester, consisting mostly of disrupting the 2 class or for playground behavior. Also, although Plaintiff did his homework and put it in his 3 backpack which he took to school, for some reason the teacher was not getting homework. (A.R. 4 454.) Plaintiff's grades were pretty good, but his behavior got in the way of his grades. (A.R. 455.) 5 Plaintiff had hurt his siblings, including the baby, but Plaintiff's mother could not

6 remember the last time she caught him doing something like that. (A.R. 456.) He could 7 concentrate on a TV program for twenty or thirty minutes but he fidgeted with other things or 8 looked elsewhere. (A.R. 458.) He would do his chores of taking out the trash, making his bed, and 9 cleaning up messes in his room after he had a fit. (A.R. 458.) He said a couple of times that he 10 would like to kill himself, most recently about a year previously. (A.R. 459.) 11 12 VI. Listing 112.05 The ALJ found that Plaintiff's ADHD, borderline intellectual functioning, learning

13 disorder not otherwise specified, and fetal alcohol effects did not meet, medically equal, or 14 functionally equal listing 112.11, pertaining to attention deficit/hyperactivity disorder, or listing 15 112.05F, pertaining to organic mental disorders plus another physical or mental impairment that 16 significantly limited function. The ALJ explained that this was because Plaintiff did not have a 17 marked level of difficulty or dysfunction in cognitive, social, or personal functioning, or marked 18 difficulty in maintaining concentration, persistence, or pace, as required by the listing. (A.R. 13.) 19 The ALJ did not expressly address whether Plaintiff's impairments met, medically

20 equaled, or functionally equaled listing 112.05C (mental retardation), an impairment listed in 20 21 C.F.R., Part 404, Subpart P, Appendix 1.1 Plaintiff argues that the ALJ had a duty expressly to 22 address whether or not Plaintiff's impairments equaled listing 112.05C. Plaintiff asserts that an 23 ALJ must always facially address all three steps (meeting a listing, medically equaling a listing, 24 and functionally equaling a listing) in a child's disability claim. Further, Plaintiff argues that the 25 ALJ should have consulted a medical expert on the subject. 26 27
1

It is Plaintiff's burden to establish that his impairment met a listing. Bowen v. Yuckert,
The ALJ did note the absence of a diagnosis of mental retardation. (A.R. 13-14.)

28

21

1 482 U.S. 137, 146 n.5 (1987). Mere diagnosis of a listed impairment is not sufficient to sustain a 2 finding of disability. There must also be the findings required in the listing. Young v. Sullivan, 3 911 F.2d 180, 183 (9th Cir. 1990); 20 C.F.R. § 416.925(d). Generally, specific medical findings 4 are needed to support the diagnosis and the required level of severity. 20 C.F.R. §§ 404.1525, 5 416.925. The Commissioner is not required to state why a claimant failed to satisfy every different 6 section of the listing of impairments; rather, it is sufficient to evaluate the evidence upon which 7 the ultimate factual conclusions are based. Otherwise, an undue burden would be put on the social 8 security disability process. Gonzales v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 1990). 9 Listing 112.05, the listing for mental retardation of children, contains six sets of criteria.2

10 If an impairment satisfies the diagnostic description in the introductory paragraph and any one of 11 the six sets of criteria, the child's impairment will be found to meet the listing. 20 C.F.R, part 404, 12 subpart P, App. 1, § 112.00(1)(A). Section 112.05 of the listings provides that mental retardation 13 is characterized by significantly sub-average general intellectual functioning with deficits in 14 adaptive functioning. The required level of severity for the disorder is met when the additional 15 requirements in any of the subsections A through F are satisfied. 16 Section 112.05C, the listing raised by Plaintiff (Brief pp. 6-7), requires a "valid verbal,

17 performance, or full scale IQ of 59 or less," but this does not correspond with Plaintiff's argument 18 concerning a listing level impairment being 70. Rather, § 112.05D provides for a valid verbal, 19 performance, or full scale IQ of 60 through 70 and a physical or other mental impairment 20 imposing an additional and significant limitation of function. Likewise, § 112.05E requires a valid 21 verbal, performance, of full-scale IQ of 60 through 70 and, for children aged three to eighteen, it 22 must result in at least one of paragraphs B2b, B2c, or B2d of listing 112.02. The identified 23 paragraphs of listing 112.02 describe specific marked impairments: 24 25 26 27 28
Unless otherwise stated, all references to Listing 112.05 are to the version effective between December 18, 2 0 0 7 and May 29, 2008. All references to the Code of Federal Regulations are to the version effective at the time of t h e ALJ's decision.
2

b. Marked impairment in age-appropriate social functioning, documented by history and medical findings (including consideration of information from parents or other individuals who have knowledge of the child, when such information is needed and available) and

22

1 2 3 4

including, if necessary, the results of appropriate standardized tests; or c. Marked impairment in age-appropriate personal functioning, documented by history and medical findings (including consideration of information from parents or other individuals who have knowledge of the child, when such information is needed and available) and including, if necessary, appropriate standardized tests; or d. Marked difficulties in maintaining concentration, persistence, or pace.

5 6 Further, where "marked" is used as a standard for measuring the degree of limitation, it means

7 more than moderate but less than extreme. § 112.00(1)(C). A marked limitation may arise when 8 several activities or functions are impaired, or even when only one is impaired, as long as the 9 degree of limitation is such as to interfere seriously with the ability to function (based on age10 appropriate expectations) independently, appropriately, effectively, and on a sustained basis. Id. 11 When standardized tests are used as the measure of functional parameters, a valid score that is two 12 standard deviations below the norm for the test will be considered a marked restriction. Id. As it 13 applies to primary school children, the intent of the functional criterion described in paragraph 14 B2d, i.e., deficiencies of concentration, persistence, or pace resulting in failure to complete tasks 15 in a timely manner, is to identify the child who cannot adequately function in primary school 16 because of a mental impairment. Although grades and need for special education placement are 17 relevant factors, they are not conclusive due to variability in school districts' grading levels and 18 criteria for special education placement. Id. 19 Here, the evidence that Plaintiff argues prompted a duty to discuss the listing is Plaintiff's

20 score of 71 in verbal reasoning on the Stanford-Binet, a score of 71 in communication, 66 in daily 21 living skills, and 67 in socialization on the Vineland test for adaptive functioning, and Dr. 22 Battista's reports on the Vineland scores. (A.R. 423). Plaintiff also notes that Dr. Michiel 23 commented on the difficulty of assessing cognitive function but did not quantify the degree of 24 help necessary. Accordingly, argues Plaintiff, the ALJ's rejection of marked deficiencies 25 established by Dr. Battista's testing did not have the support of substantial evidence. 26 The scores noted by Plaintiff appear to be pertinent to §§ 112.05D or 112.05E, and not

27 112.05C. However, in any event, even the Stanford-Binet scores resulting from Dr. Battista's 28 23

1 examination in June 2003 were not sufficiently low to be within the listing level range of 60 to 70. 2 The lowest score was in verbal reasoning (71), whereas the scores for abstract/visual reasoning 3 (89) and quantitative reasoning (88), the other areas tested, were much higher. Considering 4 Plaintiff's particular problem with expressive and receptive verbal communication around the 5 time of Dr. Battista's testing, and further considering Plaintiff's improvement after speech 6 therapy, the Stanford-Binet scores do not appear to meet the listing's requirements. 7 As to the scores on the Vineland test for adaptive functioning, it is not clear that these tests

8 measure "IQ" within the meaning of the listing. Dr. Reinfurt, whose results the ALJ credited 9 (A.R. 14-15), stated that the Vineland scales largely explored a person's functioning in domains of 10 communication, daily living skills and socialization (A.R. 355). In any event, the ALJ expressly 11 gave great weight to the test results obtained by Dr. Reinfurt in May 2006 (A.R. 14-15), which 12 appeared valid, and which reflected scores on the Wechsler Intelligence Scale for Children-IV, 13 which measured intelligence and cognitive ability of children, of borderline to low average range 14 of cognitive functioning (full scale IQ of 78, prorated verbal comprehension index of 89, prorated 15 perceptual reasoning index of 82, working memory index of 83, and processing speed index of 16 75). (A.R. 14-15, 355.) 17 Plaintiff points to the fact that Dr. Battista stated that the Vineland scores he obtained back

18 in 2003 were lower than he expected given the Stanford-Binet scores. (A.R. 423.) Dr. Battista 19 stated that both observation and the IQ assessment caused him to expect higher Vineland scores. 20 (A.R. 423.) Immediately following that remark, Dr. Battista stated that the scores were at least 21 consistent with a child who was having limited verbal communication abilities. Limited 22 functioning was explained as a result of a combination of weak verbal communication abilities 23 and discipline/parenting variables. Dr. Battista opined that the behavioral issues appeared not to 24 be based on cognitive problems, intrinsic social deficit, or problems with attention or level of 25 activity. Instead, level of activity, sustained attention and social functioning aside from conduct 26 issues were relatively intact. (A.R. 423-24.) Because Dr. Battista's assessment did not identify a 27 cognitive problem, it did not create a duty on the part of the ALJ to evaluate the additional listing. 28 24

1

The Court likewise rejects Plaintiff's contention that the listing had to be addressed

2 because Dr. Battista's Vineland test scores reflected marked limitations in daily living skills and 3 socialization, and were only one point above marked with respect to communication. (A.R. 423.) 4 The ALJ expressly found that Plaintiff did not have marked level of difficulty in cognitive, social, 5 or personal functioning, or marked difficulty in maintaining concentration, persistence, or pace. 6 (A.R. 13.) He reviewed each domain of functioning and the evidence pertinent to it. (A.R. 13-18.) 7 In so doing, he articulated detailed reasons, which will be discussed below in connection with 8 Plaintiff's contentions concerning the ALJ's handling of the expert opinions and medical 9 evidence. It is clear from the ALJ's reasoning that the ALJ placed weight on other evidence. 10 Plaintiff points to Dr. Michiel's comment that it was very difficult to assess Plaintiff's

11 cognitive skills because of Plaintiff's resistance to getting involved in the interview. (A.R. 284.) 12 The comment appears to relate solely to Plaintiff's particular conduct at that interview. Therefore, 13 it is not generally applicable or transferable to the findings of other examiners, who did not 14 experience the same behavior. Further, the ALJ expressly stated that Plaintiff's presentation at the 15 consultative exam was atypical. (A.R. 15.) 16 Finally, the Court rejects Plaintiff's contention that the ALJ was required to consult with a

17 medical expert concerning the inconsistent test scores, Plaintiff's intelligence quotient, or whether 18 or not Plaintiff met the listing. In support of this argument, Plaintiff cites to Howard ex rel. Wolff 19 v. Barnhart, 341 F.3d 1006, 1014 (9th Cir. 2003), which discussed 42 U.S.C. § 1382c(a)(3)(I), 20 which provides: 21 22 23 24 In making any determination under this subchapter with respect to the disability of an individual who has not attained the age of 18 years and to whom section 421(h) of this title does not apply, the Commissioner of Social Security shall make reasonable efforts to ensure that a qualified pediatrician or other individual who specializes in a field of medicine appropriate to the disability of the individual (as determined by the Commissioner of Social Security) evaluates the case of such individual.

25 The Court notes that the statute refers to § 421(h), which in turn relates to evaluation of mental 26 impairments by qualified medical professionals, and specifies that an initial determination that an 27 individual is not under a disability, where there is evidence indicating the existence of a mental 28 25

1 impairments, shall be made only if the Commissioner has made every reasonable effort to ensure 2 that a qualified psychiatrist or psychologist has completed the medical portion of the case review 3 and any applicable residual functional capacity assessment. 4 Assuming that § 1382c applies to Plaintiff, the Court notes that psychiatrist Dr. J. A.

5 Collado, reviewed all the evidence in the file as well as the previous assessment from 2006 and 6 affirmed the earlier assessment. It appears that an appropriate specialist reviewed the entire case 7 and rendered an opinion as to RFC. 8 Further, Plaintiff has not established that the ALJ otherwise had a duty to obtain further

9 medical information. It is the claimant who bears the burden of proving that he is disabled. 10 Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The duty to develop the record arises 11 where the record before the ALJ is ambiguous or inadequate to allow for proper evaluation of the 12 evidence. 20 C.F.R. §§ 404.1512(e) and 416.912(e); Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th 13 Cir. 2005); Mayes v. Massanari, 262 F.3d 963, 968 (9th Cir. 2001). 14 Here, the ALJ did not find any inadequacy or ambiguity that prevented evaluation of the

15 evidence. Rather, the ALJ, with support in the record, found the evidence adequate to make a 16 determination regarding Plaintiff's disability. Accordingly, the Court concludes that the ALJ did 17 not have a duty to recontact the doctors. 18 In summary, in light of the foregoing, and considering the following analysis concerning

19 the ALJ's reasoning concerning the extent of Plaintiff's functional limitations, the Court 20 concludes that it was unnecessary for the ALJ to discuss whether Plaintiff's impairments equaled 21 listing 112.05C through 112.05E. 22 23 VII. Expert Opinions concerning Marked Limitations Plaintiff contends that the ALJ's conclusion that Plaintiff's functional limitations were not

24 marked was not supported by substantial evidence. Plaintiff does not comprehensively address the 25 ALJ's analysis, but rather argues in a scattered fashion that the ALJ wrongfully rejected some 26 opinions tending to show marked symptoms or limitations, wrongly relied on lay evidence and 27 erred in failing to address and give controlling weight to the opinion of Dr. Bishop. 28 26

1

In determining whether Plaintiff's severe impairments functionally equal the listings, an

2 ALJ determines whether the impairments were of listing-level severity, i.e., whether they resulted 3 in marked limitations in two domains of functioning, or an extreme limitation in one domain. 20 4 C.F.R. § 416.926a(a). The functional domains to be considered include 1) acquiring and using 5 information; 2) attending and completing tasks; 3) interacting and relating with others; 4) moving 6 about and manipulating objects; 5) caring for oneself; and 6) health and physical well-being. § 7 416.926a(b)(1). 8 In determining the extent of the limitations, all relevant factors are considered, including

9 but not limited to, how well the minor can initiate and sustain activities, how much extra help the 10 minor needs, and the effects of structured or supportive settings. Also, relevant factors include 11 how the minor functions in school and the effects of medications or other treatment. § 12 416.926a(a)(1). Information considered includes not only medical signs, symptoms, and 13 laboratory findings but also descriptions of functioning from parents, teachers, and other people 14 who know the minor. § 416.926a(e)(1). 15 As previously noted, a "marked" limitation is found when an impairment interferes

16 seriously with the ability independently to initiate, sustain, or complete activities, or is more than 17 moderate but less than extreme. An extreme limitation is found when an impairment interferes 18 very seriously with t