Jensen v. Commissioner of Social Security

Filing 19

ORDER signed by Magistrate Judge Allison Claire on 3/18/15 ORDERING that Plaintiffs motion for summary judgment 15 is granted in part; The Commissioners cross-motion for summary judgment 17 is denied; and This matter is remanded for further proceedings consistent with this order. CASE CLOSED (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NATALIE JENSEN,

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No. 2:13-cv-01822-AC

Plaintiff,
v.

ORDER

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

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying her application for supplemental security income (“SSI”) as a child

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under Title XVI of the Social Security Act. Plaintiff’s motion for summary judgment and the

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Commissioner’s cross-motion for summary judgment are pending. For the reasons discussed

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below, the court will grant plaintiff’s motion for summary judgment in part and deny the

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Commissioner’s cross-motion for summary judgment.

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PROCEDURAL BACKGROUND

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Plaintiff’s mother filed her application for SSI on her behalf on March 30, 2006.

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Administrative Record (“AR”) 11. Plaintiff’s application was denied initially on September 14,

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2006, and again upon reconsideration on June 8, 2007. Id. Following a hearing, plaintiff’s

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request for benefits was denied on September 18, 2008. Id. Plaintiff requested review of the
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decision by the Appeals Council, which remanded her claim on November 4, 2010. Id. On

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August 10, 2011, a hearing was held before administrative law judge (“ALJ”) Stanley R. Hogg.

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AR 11, 33. Plaintiff appeared with her attorney at the hearing, where she and her mother, Bonnie

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Sue Jensen, testified. AR 11. In a decision dated October 14, 2011, the ALJ found plaintiff not

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disabled. AR 33.

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The ALJ made the following findings (citations to 20 C.F.R. and Exhibits omitted):

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1. The claimant was born on September 24, 1992, and was
therefore in the “Adolescents (age 12 to attainment of age 18)” age
group on March 30, 2006, the date the application was filed. The
claimant attained age 18 on September 23, 2010.

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2. The claimant has not engaged in substantial gainful activity
since the date the application was filed.
3. Before attaining age 18, the claimant had the following severe
impairments: borderline intellectual functioning (BIF) with IQ of
75 and attention deficit hyperactive disorder (ADHD).
4. Before attaining age 18, the claimant did not have an impairment
or combination of impairments that met or medically equaled one
of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1, Part A or B.
5. Before attaining age 18, the claimant did not have an impairment
or combination of impairments that functionally equaled the
listings.
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Because the claimant did not have an impairment or
combination of impairments that met, medically equaled any listing
or functionally equaled the listings, the claimant was not disabled
prior to attaining age 18.
7. The claimant has not developed any new impairment or
impairments since attaining age 18 in September 2010.
8. Since attaining age 18, the claimant has continued to have a
severe impairment or combination of impairments.
9. Since attaining age 18, the claimant has not had an impairment
or combination of impairments that meets or medically equals a
listed impairment.
10. After careful consideration of the entire record, the undersigned
finds that, since attaining age 18, the claimant has had the residual
functional capacity to perform a full range of work at all exertional
levels but with the following nonexertional limitations; limited to
simple, repetitive tasks consistent with a limitation to unskilled
work.
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11. The claimant has no past relevant work.

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12. The claimant is currently a “younger individual age 18–44.”

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13. The claimant has at least a high school education and is able to
communicate in English.

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14. Transferability of job skills is not an issue because the claimant
does not have past relevant work.
15. Since attaining age 18, considering the claimant’s age,
education, work experience, and residual functional capacity, jobs
have existed in significant numbers in the national economy that the
claimant has been able to perform.

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16. The claimant has not been under a disability, as defined in the
Social Security Act, since September 23, 2010, the day the claimant
attained age 18, through the date of this decision.

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AR 11–33 (citations to the Code of Federal Regulations omitted).
Plaintiff requested review of the ALJ’s decision by the Appeals Council, but it denied

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review on July 23, 2013, leaving the ALJ’s decision as the final decision of the Commissioner of

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Social Security. AR 1–4.

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FACTUAL BACKGROUND
Born on September 24, 1992, plaintiff was 13 years old on the date her SSI application

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was submitted and 18 years old at the time of the most recent administrative hearing. AR 11, 16.

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Plaintiff has never engaged in substantial gainful activity. AR 16.

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LEGAL STANDARDS
The Commissioner's decision that a claimant is not disabled will be upheld if the findings

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of fact are supported by substantial evidence in the record as a whole and the proper legal

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standards were applied. Schneider v. Comm'r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir.

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2000); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The findings

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of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See

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Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion. Osenbrock v.

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Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Morgan, 169 F.3d at 599); Jones v. Heckler,

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760 F.2d 993, 995 (9th Cir. 1985) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
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A reviewing court must consider the record as a whole, weighing both the evidence that

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supports and the evidence that detracts from the ALJ's conclusion. Jones, 760 F.2d at 995. The

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court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting

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evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial

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evidence supports the administrative findings, or if there is conflicting evidence supporting a

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finding of either disability or non-disability, the finding of the ALJ is conclusive, Sprague v.

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Bowen, 812 F.2d 1226, 1229–30 (9th Cir. 1987), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir.

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1988).

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In determining whether or not a child is disabled for purposes of the SSI program, the ALJ

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should apply the three-step sequential evaluation process established under Title 20 of the Code

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of Federal Regulations, § 416.924. This evaluation process was developed after the statutory

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definition of childhood disability and the standard for determining whether a child is eligible for

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disability benefits were altered in 1996 by the Personal Responsibility and Work Opportunity

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Reconciliation Act, Pub.L. No. 104–193, § 211, 110 Stat. 2105 (1996). See Howard ex rel. Wolff

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v. Barnhart, 341 F.3d 1006, 1013 (9th Cir. 2003) (citing legislative history indicating that the

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change in the law was designed so that only needy children with severe disabilities will be

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eligible for SSI); Jamerson v. Chater, 112 F.3d 1064, 1065, 1067–68 (9th Cir. 1997) (recognizing

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the more stringent standard for finding a child disabled imposed by the 1996 legislation).

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A child, defined as “[a]n individual under the age of 18,” is disabled for purposes of the

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SSI program if the child “has a medically determinable physical or mental impairment, which

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results in marked and severe functional limitations, and which can be expected to result in death

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or which has lasted or can be expected to last for a continuous period of not less than 12 months.”

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42 U.S.C. § 1382c(a)(3)(C)(i). The three-step evaluation process requires the ALJ to determine

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(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the

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claimant has a medically determinable impairment or combination of impairments that is severe;

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and (3) whether the claimant's impairment or combination of impairments meets or medically

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equals the requirements of a listed impairment, or functionally equals the listings. 20 C.F.R. §
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416.924(b)-(d); see also Nesmith ex rel. A.S. v. Astrue, No. CV–07–217–CI, 2008 WL 958206, at

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*2 (E.D. Wash. Apr. 8, 2008); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1150–

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51 (C.D. Cal. 2008); Smith v. Massanari, 139 F. Supp. 2d 1128, 1132 (C.D. Cal. 2001). “The

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claimant bears the burden of establishing a prima facie case of disability.” Roberts v. Shalala, 66

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F.3d 179, 182 (9th Cir. 1995).

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The court will not reverse the Commissioner’s decision if it is based on harmless error,

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which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the

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ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.

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2006) (quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v.

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Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

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ANALYSIS

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Plaintiff seeks summary judgment on the grounds that (1) the ALJ committed an error of

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law in failing to call upon a qualified medical expert to opine on plaintiff’s case in accordance

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with Acquiescence Ruling (AR) 04–1(9); (2) the ALJ failed to comply with POMS DI

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24515.056(D) in determining whether plaintiff suffers from a listing level impairment; (3) the

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ALJ failed to adequately consider Listing 112.11—Attention Deficit Hyperactivity Disorder; and

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(4) the ALJ’s decision is not supported by substantial evidence. The Commissioner, in turn,

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argues that the ALJ’s findings are supported by substantial evidence and are free from legal error.

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For the reasons discussed below the court finds that the ALJ committed legal error by failing to

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call a pediatrician or other appropriate specialist to evaluate plaintiff’s case as a whole.

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A.

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Medical Expert Testimony
Plaintiff argues that the ALJ violated AR 04–1(9) by failing to call a qualified medical

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expert to review the entire case after the Appeals Council remanded. ECF No. 15 at 5–7.

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Plaintiff also argues that the ALJ committed legal error by failing to explain how plaintiff’s

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medical reports were considered and by failing to include evidence of the medical experts’

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qualifications in the record. Id. The Commissioner argues that the ALJ’s decision not to have

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plaintiff’s case evaluated by a medical expert on remand was reasonable based on the available

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medical evidence. ECF No. 17 at 7–9. Specifically, the Commissioner contends that there was
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no reason to call a medical expert because medical records generated since plaintiff’s first hearing

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indicated that plaintiff had been improving academically and socially. Id. at 8. The

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Commissioner does not address plaintiff’s arguments that the ALJ violated AR 04–1(9) by failing

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to explain how medical reports were considered and failing to include evidence of the medical

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experts’ qualifications in the record. The court finds that the ALJ did not comply with AR 04–

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1(9) because his decision does not include an evaluation by a qualified medical expert of the case

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as a whole.

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The Social Security Administration issued AR 04–1(9) in response to the Ninth Circuit

Legal Standards

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Court of Appeals’ decision in Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006 (9th Cir. 2003). 1

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AR 04–1(9) (effective Apr. 26, 2004), available at http://www.socialsecurity.gov/OP_Home/

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rulings/ar/09/AR2004-01-ar-09.html. In Howard, the Ninth Circuit held that the ALJ committed

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a legal error by failing to comply with 42 U.S.C. § 1382c(a)(3)(I), which provides as follows:

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In making any determination under [Title XVI] . . . with respect to
the disability of an individual who has not attained the age of 18
years . . . , 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.

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Howard, 341 F.3d at 1014. The Ninth Circuit “interpret [ed] this to mean that the ALJ is required
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to make a reasonable effort to obtain a case evaluation, based on the record in its entirety, from a
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pediatrician or other appropriate specialist, rather than simply constructing his own case
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evaluation from the evidence in the record.” 341 F.3d at 1014. The record in Howard included
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various reports from doctors and specialists; however, the Ninth Circuit determined that none of
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these reports evaluated the case as a whole. Id. Accordingly, the court remanded the case for
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further development of the record. Id. at 1015.
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“SSRs do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009). The Ninth Circuit gives them
deference so long as they do not produce “a result inconsistent with the statute and regulations.”
Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991).
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Pursuant to AR 04–1(9), the Social Security Administration applies the Howard decision

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only to Title XVI childhood disability cases in which the claimant resided in a state within the

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Ninth Circuit at the time of the ALJ or Appeals Council decision. Howard’s interpretation of 42

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U.S.C. § 1382c(a)(3)(I) is also only applied to the ALJ and Appeals Council levels of the

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administrative review process. AR 04–1(9). In such cases, the ALJ

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must 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 identified by the
ALJ or AAJ) evaluates the case of the individual. To satisfy this
requirement, the ALJ or AAJ may rely on case evaluation made by
a State agency medical or psychological consultant that is already
in the record, or the ALJ or AAJ may rely on the testimony of a
medical expert. When the ALJ relies on the case evaluation made
by a State agency medical or psychological consultant, the record
must include the evidence of the qualifications of the State agency
medical or psychological consultant. In any case, the ALJ or AAJ
must ensure that the decision explains how the State agency
medical or psychological consultant's evaluation was considered.

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Id.; see also Willmett ex rel. A.P. v. Astrue, No. 2:10-CV-01201 KJN, 2011 WL 3816284, at *3

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(E.D. Cal. Aug. 25, 2011); Robinson v. Astrue, No. CIV S-08-2296 DAD, 2010 WL 3733993, at

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*3 (E.D. Cal. Sept. 21, 2010).

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2.

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Records indicate that plaintiff was diagnosed with attention deficit hyperactivity disorder

Medical History

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(ADHD) in the fall of 2004. AR 372. Although she was initially prescribed Ritalin, she

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transitioned to Metadate in February 2005. AR 268. On May 5, 2005, psychologist Jeffrey

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Widmann, Ed.D., performed a psychological evaluation on plaintiff. AR 368–71. At the time

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plaintiff was a 12 year old student in sixth grade. AR 368. Testing revealed a full scale IQ of 75

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indicating an overall ability in the borderline range as well as weak attention. AR 370–71. On

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December 1, 2005, a social worker at Alta California Regional Center, Ed Loveridge, MSW,

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found plaintiff to be eligible for special education services under a category similar to mental

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retardation. AR 409.

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In a letter dated April 26, 2006, to California’s Health and Human Services Agency
Jennifer Pearson, MFT, stated that plaintiff had been receiving therapy related to her academic
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difficulties, grieving the loss of a younger brother, disruptive behaviors, impulse control

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problems, oppositional behaviors, and strained peer relationships. AR 422. Ms. Pearson stated

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plaintiff had been seeing her weekly since August 11, 2004, and would be discharged on June 30,

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2006. Id. Ms. Pearson agreed with plaintiff’s diagnosis of ADHD, and concluded that she had

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met her goals of improved compliance with rules and expectations both at school and in the

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home, and improved impulse control. Id.

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On August 11, 2006, Diamond Kassam, M.D., reviewed plaintiff’s history and

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development, and performed a comprehensive pediatric evaluation. AR 425–28. Dr. Kassam

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diagnosed plaintiff with development delay, ADHD, and cognitive functioning problems, and

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indicated that plaintiff reported functioning at the fourth grade level although she was in the

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eighth grade. AR 427. Dr. Kassam opined that plaintiff’s ADHD was well controlled on

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medication; however, he cautioned that his findings were not to be considered a final judgment on

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the subject because he did not have access to formal testing or school reports. AR 427. Dr.

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Kassam also noted that plaintiff took Albuterol and Motrin, and recommended that plaintiff’s

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back be x-rayed as soon as possible as she seemed to have marked scoliosis. AR 425–28. A

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subsequent imaging report signed by Brian D. Fellmeth, M.D., dated September 28, 2006,

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diagnosed plaintiff with very minimal thoracolumbar scoliosis. AR 547.

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On August 28 and September 12, 2006, state agency psychiatrist V. M. Meenakshilvi,

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M.D., and physician T. P. Nguyen, M.D., reviewed the record and opined in a Childhood

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Disability Evaluation Form that plaintiff’s impairment or combination of impairments did not

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meet, medically equal, or functionally equal the listings. AR 429–34. According to Dr.

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Meenakshilvi and Dr. Nguyen, plaintiff had less than marked limitations in every domain except

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moving about and manipulating objects, in which she had no limitations. AR 431–32. In an

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attachment explaining their findings the doctors summarize the records they reviewed in coming

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to their conclusions. AR 435–37. Those records included evaluations from doctors, letters from

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therapists, and individualized assessment reports from teachers spanning from January 2003 to

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September 2006. Id.

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On November 6, 2006, school psychologist Geoff Smith, Ph.D., issued a Psychological

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Assessment Report finding plaintiff to qualify for special education under the criteria for

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emotional disturbance. AR 349–54. Dr. Smith’s report pointed to prior cognitive test scores that

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indicated her ability to be within the borderline range of functioning and that prior assessments of

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behavioral functioning indicated significant problems with inattention and hyperactivity. AR

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354. Dr. Smith also noted that plaintiff had significant levels of emotional and behavioral

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difficulties, and demonstrated emotional immaturity and instability, a lack of social skills, and a

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lack of self-efficacy that likely contributed to problems in school. Id.

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A teacher questionnaire dated March 14, 2007, provides insight into plaintiff’s academic

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performance during this time. AR 324–31. Ms. Dina Gassaway had been plaintiff’s teacher in at

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least one subject since August 2005. AR 324. At the time that Ms. Gassaway filled the

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questionnaire out plaintiff was in the 8th grade and being taught in a special education setting. Id.

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Ms. Gassaway’s report states that plaintiff was reading at the 6th grade level, doing math at the 5th

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grade level, and writing at a 3rd grade level. Id. Ms. Gassaway also indicated that plaintiff had

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problems in most domains, needed substantial support to be successful, and had an extremely

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poor sense of social boundaries. AR 325–31. Nevertheless, Ms. Gassaway noted that learning in

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a special education setting was helping her to be more successful academically and socially. AR

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331.

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On April 2, 2007, Frank Weber, Ph.D., performed a psychological consultative evaluation.

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AR 478. Dr. Weber found that according to the Weschsler Intelligence Scale for Children-IV

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(WISC-IV) plaintiff was functioning in the extremely low to low average range with a full scale

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IQ of 67. Id. Based on Dr. Weber’s evaluation he found plaintiff qualified for a diagnosis of

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mild mental retardation, however he noted that plaintiff’s medication seemed to be controlling her

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ADHD because she did not seem to have problems with attention or concentration. AR 479.

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Finally, Dr. Weber rated Plaintiff’s Global Assessment Functioning Scale (GAF) score at 55. AR

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480. On May 16, 2007, Lydia Mallare, M.D., reviewed the record on reconsideration and opined

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in a Childhood Disability Evaluation Form that plaintiff suffered from ADHD and mild

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retardation. AR 481–82. Dr. Mallare also opined, however, that these impairments did not meet,
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medically equal, or functionally equal the listings because she had a marked limitation in only

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one domain, acquiring and using information. AR 481–84. An attachment to Dr. Mallare’s

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report details the records she used in making her determination. AR 486. These records include

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reports from the school district, the school itself, therapists, and physicians. Id.

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A Psychiatric Assessment dated June 12, 2007, by Paul Copeland, D.O., at the White

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House Counseling Center diagnosed plaintiff with ADHD, sibling relational problems, and

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multiple learning delays with a GAF score of 54. AR 489. Dr. Copeland noted that plaintiff was

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pleasant, interacted well, and had cognitive defects but was socially reciprocal. Id. She seemed

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to understand the problems she was facing and was clear in talking about her tendency to have

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tantrums. Id. Plaintiff’s insight and judgment were noted as being fair. Id.
In late November and early December 2007, the San Juan Unified School District’s

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Special Education Department generated reports from plaintiff’s teachers on her academic and

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behavioral progress. AR at 490–98. In those records plaintiff’s teachers commented that plaintiff

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was easily distracted, but responded well to redirection, however, she often acted inappropriately

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in class. AR at 490. Those records also list the accommodations plaintiff received, including

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breaks with subtests, spellchecker and grammar checker, and the ability to use the calculator. AR

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at 492. The reports indicated that plaintiff continued to be eligible for special education services

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based on an emotional disturbance, and in fact required a modification in her special needs

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program in the way of smaller testing environments and extended time on assignments as needed.

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AR at 495–97.

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Special Education Department Assessments from 2008 indicate that plaintiff had

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problems speaking out of turn, was impulsive, and tended to finish her class work without much

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effort. AR 609. Although multiple reports indicate that she was capable of getting high grades,

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they also note plaintiff had problems socializing and acting appropriately, especially in large

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groups. AR 608, 614. Special Education Department assessments from December 2009 state that

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plaintiff had problems understanding basic algebraic concepts, and comprehending what she was

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reading. AR 587. Another teacher reported that plaintiff was “overcoming her social struggles,”

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worked on appropriate tone daily, and was gradually “becoming less defensive.” AR 595.
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November 2010 reports from the special education department include an assessment from one

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teacher stating she was doing a great job, along with observations from others that she was often

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off task with her socializing and had trouble understanding abstract concepts. AR 577, 578.

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Reports also indicate that she was friendly and showed improvement, but still needed to take

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more responsibility for her education and work on her social skills. AR 579, 580.

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Alta California Regional Center records for September 2010 indicate that at the age of 19

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plaintiff continued to be eligible for the center’s services based on her diagnosis of borderline

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mental retardation. AR 710. The report indicates that plaintiff required specialization and

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continuous care twenty-four hours a day to ensure her health and safety. AR 678. Because these

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duties had become a strain on plaintiff’s mother, the report recommends that she utilize a “respite

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agency” as needed. Id. Plaintiff’s health was noted as good and her ADHD considered stable

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with medication. Id. Plaintiff was in the 12th grade at the time and had plans to attend American

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River College after graduation. Id.

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An individualized assessment report from December 1, 2010, states that plaintiff’s

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communication development is age appropriate, that she is working towards obtaining a part time

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job with the help of the school, and that her behavior does not impede the learning of herself or

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others. AR 553–54. The same report states that plaintiff’s California Standards Test Scores are

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far below basic in English/Language Arts, Math, and Science, and below basic in History/Social

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Studies; and that she struggles with basic concepts in Algebra. AR 553, 556. The report also

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noted that plaintiff was on track to graduate in June 2011. AR 563.

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In June 2011, the school generated a summary of plaintiff’s academic achievements and

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development concluding that plaintiff has strong communication and interpersonal skills, and

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noting that she enjoys helping others and working with small children. AR 566. The summary

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also found that plaintiff improved substantially in her emotional well-being, in part through

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weekly support meetings with the school psychologist. Id. The summary states, however, that

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plaintiff’s academic skills were not at grade level at the time, and that she was struggling with

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reasoning, comprehension, and writing skills. Id. The summary also states that she will need

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accommodations in any college courses she takes. Id.
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A letter from Ms. Pearson dated August 12, 2011, includes a summary of services

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provided to plaintiff by her intern, Cynthia Hunter, MFT. AR 700. Ms. Pearson’s letter states

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that during plaintiff’s intake on March 16, 2009, she exhibited symptoms of depression, low self-

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esteem, and difficulty in dealing with loss and problems at school. Id. At that time, Ms. Pearson

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diagnosed plaintiff with adjustment disorder and depressed mood. Id. By November 2009,

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plaintiff was missing fewer school days in accordance with her stated goals. Id. When plaintiff

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was discharged on August 10, 2010, she showed signs of decreased depression and increasing

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self-esteem, however, her therapist had noted that she would benefit from continued counseling.

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Id.

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3.

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The court finds that the ALJ’s decision fails to satisfy the requirements of AR 04–1(9).

Analysis

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Because the ALJ committed a legal error, the court will grant plaintiff’s motion for summary

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judgment in part and deny the Commissioner’s cross-motion for summary judgment.

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The ALJ’s opinion makes no reference to AR 04–1(9), either explicitly or implicitly.

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However, the record reveals that two separate case reviews by agency physicians took place, one

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when plaintiff first applied for benefits, AR 429–34, and then another upon reconsideration, AR

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481–82. The ALJ’s decision describes these reports and the evidence they are based on in detail.

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AR 19, 20. The problem is that the most recent report was written on May 16, 2007, AR 481–86,

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more than a year before the ALJ first denied plaintiff’s claim, and more than four years before the

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ALJ’s second denial on remand. AR 11, 33. In the interim, the record in plaintiff’s case grew.

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Dr. Mallare could not have considered the more recent evidence in her case evaluation, such as

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the special education department’s reports from the years 2008, 2009, 2010, and 2011, AR 609–

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14, 587–600, 577–81, 566–67; as well as a status update from plaintiff’s therapist, AR 700; and a

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report from Alta California Regional Center in September 2010, AR 676–79. These reports do

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not uniformly support plaintiff’s claim of disability, but they do establish that plaintiff continued

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to have difficulties socializing and comprehending new concepts in an academic setting. Alta

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California Regional Center’s 2010 report even states that plaintiff requires twenty-four hour

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support, and suggests that plaintiff’s mother utilize “respite care” to achieve a break from her
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responsibilities. AR 676–79. In light of the foregoing evidence that was not considered by the

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agency physicians’ reports, the court finds that the ALJ did not obtain a comprehensive case

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evaluation in accordance with the Ninth Circuit’s decision in Howard.

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The record also does not include any evidence as to the qualifications of the agency

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physicians. Absent an explanation of Dr. Meenakshilvi’s, Dr. Nguyen’s, and Dr. Mallare’s

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qualifications to evaluate a child diagnosed with ADHD and mild mental retardation the ALJ’s

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decision does not comport with AR 04–1(9). See Maines v. Comm'r of Soc. Sec., No. 12-CV-

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04889-JCS, 2014 WL 61041, at *22 (N.D. Cal. Jan. 7, 2014) (finding that the ALJ committed

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legal error by failing to include evidence of how the agency physicians were qualified to evaluate

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someone with diabetes).
The Commissioner contends that any legal error committed by the ALJ was harmless.

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ECF No. 17 at 9. The court finds that although the ALJ’s failure to include evidence of the

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agency physician’s qualifications may have been harmless, his failure to obtain a comprehensive

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case evaluation was not. The record contains ample evidence of plaintiff’s academic, social, and

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behavioral difficulties. See, e.g., AR 325–31, 349–54, 608, 614, 609, 678. Plaintiff has been

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diagnosed with mild mental retardation, ADHD, scoliosis, and asthma. AR 525, 534, 481–82,

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547. Further, plaintiff has a history of teacher evaluations and special education evaluations

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finding she has serious problems comprehending and formulating new ideas despite her efforts to

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focus on the problems in front of her. See AR 409, 478, 553, 556, 577, 578, 587. Some of these

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reports were likely considered by the agency physicians. See AR 436–37 (listing the evidence

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considered by Dr. Meenakshilvi and Dr. Nguyen in their report), 486 (listing the evidence

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considered by Dr. Mallare in her report). However, many of the reports were generated after the

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case evaluations took place. In light of these facts the court does not find it clear that the ALJ’s

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failure to obtain a comprehensive case evaluation was inconsequential to plaintiff’s disability

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determination.

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In light of the court’s finding that the ALJ failed to comply with AR 04–1(9) it declines to

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reach plaintiff’s remaining arguments that (1) the ALJ failed to comply with POMS DI

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24515.056(D) in determining whether plaintiff suffers from a listing level impairment; (2) the
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ALJ failed to adequately consider Listing 112.11—Attention Deficit Hyperactivity Disorder; and

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(3) the ALJ’s decision is not supported by substantial evidence.

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B.

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Remand
Plaintiff requests that the decision of the ALJ be vacated and that the court award plaintiff

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benefits or, in the alternative, remand for further consideration. The decision whether to remand

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for further proceedings turns upon the likely utility of such proceedings. Barman v. Apfel, 211

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F.3d 1172, 1179 (9th Cir. 2000). In this matter, the court concludes that outstanding issues

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remain that must be resolved before a determination of disability can be made. Pursuant to this

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remand, the ALJ shall call a pediatrician or other medical expert to evaluate plaintiff’s case in its

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entirety and re-evaluate plaintiff’s disability determination accordingly.

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CONCLUSION

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 15) is granted in part;

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 17) is denied; and

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3. This matter is remanded for further proceedings consistent with this order.

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DATED: March 18, 2015

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