Banuelos v. Commissioner of the Social Security Administration

Filing 26

ORDER by Judge Lucy H. Koh granting in part and denying in part 16 Motion for Summary Judgment; denying 22 Motion for Summary Judgment (lhklc3, COURT STAFF) (Filed on 9/17/2013)

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

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United States District Court

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SAN JOSE DIVISION

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DEYANIRA BANUELOS on behalf of C.B.V.,
a minor,

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Plaintiff,
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v.
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CAROLYN W. COLVIN, 1 Acting
Commissioner of Social Security,
Defendant.

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Case No. 5:12-CV-01961-LHK
ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT;
GRANTING PLAINTIFF’S ALTERNATIVE
MOTION FOR REMAND; AND DENYING
DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT
[Re: ECF Nos. 16, 22]

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Plaintiff Deyanira Banuelos (“Banuelos”), acting on behalf of her minor son, C.B.V.,

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appeals a final decision of the Commissioner of Social Security denying C.B.V.’s application for

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Supplemental Security Income (“SSI”). Before the Court are Banuelos’s motion for summary

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judgment or, in the alternative, for remand, and the Commissioner’s cross-motion for summary

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judgment, which have been fully briefed. See ECF Nos. 16, 22, 25. Upon consideration of the

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Carolyn W. Colvin, the Acting Commissioner of Social Security, is substituted for her
predecessor, Michael J. Astrue, as the defendant in this action. See Fed. R. Civ. P. 25(d).

5:12-CV-01961-LHK
ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

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briefing 2 and for the reasons set forth below, the Court DENIES Banuelos’s motion for summary

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judgment, GRANTS her alternative motion for remand, and DENIES the Commissioner’s motion

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for summary judgment.
I. BACKGROUND

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C.B.V., a ten-year-old boy, was born in the United States in May 2003. Admin. R. (“AR”)

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191. Shortly after birth, he was diagnosed with cerebral palsy. AR 385. Although his upper

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extremities have normal range of motion, AR 91, he has “lower extremities elasticity and shortened

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Achilles tendon,” AR 116. The cerebral palsy affects his gait – he turns his right foot in and walks

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on his right toes rather than placing his right heel down. AR 127-28. In December 2007, when

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C.B.V. was four years old, he had surgery to lengthen both Achilles tendons. AR 116. He received

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other treatment over the following years, including Botox injections to his calves and hamstrings in

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January 2009 followed by casts on both legs for two weeks, and additional Botox injections over the

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following year. AR 371-77. He has received physical therapy. AR 377-81. He wears leg braces

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day and night. AR 127-28.
On February 9, 2009, Banuelos applied for SSI on behalf of C.B.V., asserting disability as of

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the date of his birth. 3 Id. The application was denied initially and upon reconsideration. AR 133-

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35. An Administrative Law Judge (“ALJ”) conducted hearings on July 9, 2010 and October 7,

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2010. AR 82 - 132. The ALJ heard testimony from Banuelos, who was represented by counsel, and

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from an independent medical expert. Id. On January 27, 2011, the ALJ issued a written decision

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finding that C.B.V. is not disabled and thus is not entitled to SSI. AR 18-36. Banuelos sought

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review, requesting that the Appeals Council consider an additional medical report prepared by Dr.

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Louis Girling after issuance of the ALJ’s decision. AR 5, 11. The Appeals Council accepted the

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additional report and made it part of the record. AR 1-5. However, the Appeals Council concluded

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This matter was submitted without oral argument pursuant to Civil Local Rule 16-5.

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A claimant who demonstrates disability may receive SSI beginning the month after the month in
which the application is filed. 20 C.F.R. § 416.335. Thus although Banuelos claimed that C.B.V.
was disabled commencing in May 2003, she actually was seeking benefits from March 2009
onward. See id. The Commissioner may, however, consider a claimant’s complete medical history
in evaluating a claim for SSI. See 20 C.F.R. 416.912(d).
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

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that the report did not provide a basis for changing the ALJ’s decision and it denied review, making

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the ALJ’s decision the final decision of the Commissioner. Id. Banuelos now seeks judicial review

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of the denial of SSI. She requests that the Court grant her motion for summary judgment or, in the

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alternative, that the Court remand the matter to the Commissioner. The Commissioner has filed a

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cross-motion for summary judgment.
I. LEGAL STANDARD

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A.

This Court has the authority to review the Commissioner’s decision to deny benefits. 42

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Standard of Review

U.S.C. § 405(g). The Commissioner’s decision will be disturbed only if it is not supported by

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substantial evidence or if it is based upon the application of improper legal standards. Morgan v.

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Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 521,

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523 (9th Cir. 1995). In this context, the term “substantial evidence” means “more than a mere

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scintilla but less than a preponderance – it is such relevant evidence that a reasonable mind might

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accept as adequate to support the conclusion.” Moncada, 60 F.3d at 523; see also Drouin v.

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Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence

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exists to support the Commissioner’s decision, the Court examines the administrative record as a

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whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where evidence exists to support more than one rational

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interpretation, the court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523;

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Drouin, 966 F.2d at 1258.

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B.

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Standard for Determining Disability
SSI is available under Title XVI of the Social Security Act when an eligible claimant’s

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income and resources do not exceed statutory maximums and the claimant is “aged, blind, or

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disabled” within the meaning of the statute. 42 U.S.C. § 1382(a). “An individual under the age of

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18 shall be considered disabled . . . if that individual has a medically determinable physical or

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mental impairment, which results in marked and severe functional limitations, and which can be

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

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not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i).
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

ALJs apply a three-step sequential evaluation process to determine whether a claimant

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under the age of eighteen is disabled. 20 C.F.R. 416.924(a). 4 At step one, the ALJ determines

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whether the claimant is performing “substantial gainful activity.” Id. If so, the claimant is not

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disabled; if not, the analysis proceeds to step two. Id. At step two, the ALJ determines whether the

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claimant suffers from an impairment or combination of impairments that is severe. Id. If not, the

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claimant is not disabled; if so, the analysis proceeds to step three. Id. At step three, the ALJ

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determines whether the claimant’s impairment or combination of impairments meets, medically

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equals, or functionally equals an impairment in the Listings. Id. If not, the claimant is not disabled;

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if so, and if the impairment or combination of impairments meets the duration requirement, the

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claimant is found to be disabled. Id.
III. DISCUSSION

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At step one, the ALJ determined that C.B.V. has not engaged in substantial gainful activity

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since the application date. AR 21. At step two, the ALJ determined that C.B.V. has a severe

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impairment: “mild cerebral palsy.” Id. At step three, the ALJ determined that C.B.V.’s impairment

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does not meet, medically equal, or functionally equal an impairment in the Listings. AR 23. As a

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result, the ALJ found that C.B.V. is not disabled. AR 36.
Banuelos asserts that the ALJ erred in concluding that C.B.V.’s cerebral palsy does not meet

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or medically equal Listing 111.07 5, which provides as follows:

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111.07 Cerebral Palsy. With:

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A. Motor dysfunction meeting the requirements of 101.02 or 111.06; or

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B. Less severe motor dysfunction (but more than slight) and one of the following:
1. IQ of 70 or less; or
2. Seizure disorder, with at least one major motor seizure in the year prior to
application; or
3. Significant interference with communication due to speech, hearing or visual
defect; or
4. Significant emotional disorder.

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Section 416.924 was amended twice after the ALJ issued her written decision but before the
Appeal Council denied review. See 76 FR 41685-01 (July 15, 2011); 76 FR 24802-01 (May 3,
2011). The amendments did not alter the three-step sequential analysis. See id.

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Banuelos does not challenge the ALJ’s determination that C.B.V.’s cerebral palsy does not
functionally equal Listing 111.07.
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

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20 C.F.R. pt. 404, subpt. P, App. 1, Listing 111.07 (emphasis added). Banuelos contends that

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C.B.V. meets or medically equals Listing 111.07A 6 because he has cerebral palsy with motor

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dysfunction meeting the requirements of Listing 111.06. Listing 111.06 provides as follows:
111.06 Motor dysfunction (due to any neurological disorder). Persistent
disorganization or deficit of motor function for age involving two extremities, which
(despite prescribed therapy) interferes with age-appropriate major daily activities
and results in disruption of:

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A. Fine and gross movements; or
B. Gait and station.

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20 C.F.R. pt. 404, subpt. P, App. 1, Listing 111.06 (emphasis added). “Documentation of motor

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dysfunction must include neurologic findings and description of type of neurologic abnormality

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(e.g., spasticity, weakness), as well as a description of the child’s functional impairment (i.e., what

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the child is unable to do because of the abnormality).” 20 C.F.R. pt. 404, subpt. P, App. 1,

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111.00C.
The evidence in the record showed that C.B.V. suffers from motor dysfunction due to a

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neurological disorder (cerebral palsy); the dysfunction affects two extremities (his legs); the

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dysfunction involves “some spasticity” of the legs and impaired bilateral lower extremity motor

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strength; and the dysfunction disrupts C.B.V.’s gait. See AR 25. However, the ALJ found that

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C.B.V.’s deficit of motor function does not meet the requirements of Listing 111.06 because the

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deficit is not persistent and it does not interfere with age-appropriate major daily activities. Id.

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A.

With respect to the requirement that the deficit of motor function be “persistent,” the ALJ

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Requirement That Deficit Be Persistent

concluded as follows:
The claimant’s representative also argued that there was evidence of spasticity and a
crouched gait pattern, which satisfies that [sic] requirements of 111.06 and therefore,
111.07A. However, treatment notes also show that Dr. Hart noted that the claimant’s
gait was only mildly crouched while Dr. Girling noted only “some spasticity.”
Exhibit 19F. These medical findings do not rise to the level of demonstrating
persistent deficit of motor function as they illustrate only a moderate deficit.

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AR 25 (underlining in original, other emphasis added). Apparently, the ALJ believed that the term

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“persistent” related to the severity of the deficit, as she concluded that the medical evidence does not

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Banuelos does not contend that C.B.V. meets or equals Listing 111.07B.
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

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illustrate a “persistent” deficit but only a “moderate” one. However, the word “persistent” is a

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measure of duration rather than severity. See Merriam-Webster’s Online Dictionary http:// www.

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merriam-webster. com/medical/persistent (last visited September 16, 2013) (defining “persistent” as

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“1: existing or continuing for a long time . . . . 2: continuing to exist despite interference or

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treatment.”). The record is clear that the deficit of motor function caused by C.B.V.’s cerebral palsy

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has been present for, and will continue for, many years. See AR 328-413. Accordingly, the Court

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concludes that the ALJ’s finding that the deficit is not “persistent” is not supported by substantial

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evidence. This conclusion is not dispositive of Banuelos’s appeal because, as is discussed above,

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the ALJ also found that C.B.V.’s deficit of motor function does not meet the requirements of Listing

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111.06 because it does not interfere with age-appropriate major daily activities.

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B.

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Requirement That Deficit Interfere With Age-Appropriate Major Daily Activities
The ALJ found that the deficit of motor function caused by C.B.V.’s cerebral palsy does not

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interfere with age-appropriate major daily activities, observing that despite evidence of some deficit,

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“it cannot be stated that [C.B.V.] is unable to walk or run.” AR 25 (underlining in original). The

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ALJ went on to state that, “[e]ven if he occasionally might fall, this is not the same as an inability to

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perform the function of walking or running.” Id. The ALJ noted that “while there was evidence that

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the claimant fell down occasionally when walking and running, progress notes indicate that he was

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able to walk on heels and toes, jump with both feet, skip with the left leg, step over obstacles,

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tandem walk, kick a ball, ride a tricycle and climb on play structures.” Id. The ALJ concluded that

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those activities illustrated that C.B.V. does not have “an interference with his ability to attend to

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major age appropriate activities of daily living.” Id.

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Banuelos asserts that the deficit of motor function caused by C.B.V.’s cerebral palsy does

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interfere with his age appropriate major daily activities. She contends that the ALJ’s contrary

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finding is not supported by substantial evidence in the record but rather is the result of a failure to

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weigh the medical evidence properly. Specifically, Banuelos asserts that the ALJ should have

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credited the opinions of two treating physicians, Dr. Louis Girling and Dr. Loren Davidson, over the

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opinions of other treating and consulting physicians.

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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

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1.

Legal Standard Applicable To Medical Evidence

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When evaluating medical evidence, an ALJ must give a treating physician’s opinion

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“substantial weight.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).

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“When evidence in the record contradicts the opinion of a treating physician, the ALJ must present

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‘specific and legitimate reasons’ for discounting the treating physician’s opinion, supported by

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substantial evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). When a

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treating physician’s opinion is not contradicted by another physician, the ALJ must provide “clear

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and convincing” reasons for disbelieving the treating physician. Id. at 1228 n.8. Here, the opinions

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of Dr. Girling and Dr. Davidson are contradicted by the opinions of other treating and consulting

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physicians. Accordingly, the ALJ need provide only “specific and legitimate” reasons for

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discounting the opinions of Dr. Girling and Dr. Davidson.

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2.

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The relevant medical and non-medical evidence considered by the ALJ is summarized as

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Evidence That Was Before The ALJ

follows:
a.

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Mark Kraus, M.D. (Treating Physician)

In December 2007, Dr. Mark Kraus performed surgery on C.B.V. at Santa Clara Valley

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Medical Center to lengthen his Achilles tendons. AR 387-89. In the operation report, Dr. Kraus

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noted that C.B.V. had been diagnosed with “mild cerebral palsy” with “mild bilateral diplegia.” 7

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AR 388. C.B.V. had been walking on his tiptoes for several years, and his heel cord contractures

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did not respond to nonoperative treatment. Id.
b.

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Dennis Hart, M.D. (Treating Physician)

In January 2009, C.B.V. began treatment at Shriners Hospital for Children (“Shriners”). Dr.

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Dennis Hart administered Botox injections to muscles in both of C.B.V.’s legs and then placed the

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legs in casts for two weeks. AR 271.
c.

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In April 2009, Dr. Lawrence Manhart, also at Shriners, followed up with C.B.V. to assess

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Lawrence J. Manhart, M.D. (Treating Physician)

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“Diplegia” is “paralysis of corresponding parts (as the legs) on both sides of the body.” MerriamWebster’s Online Dictionary http:// www. merriam-webster. com/medical/diplegia (last visited
September 16, 2013).
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

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progress from the Botox injections and casting prescribed by Dr. Hart. AR 304. Dr. Manhart noted

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that C.B.V. “is an independent ambulator” and that he “was able to walk and run up and down the

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hall today without much difficulty.” AR 304-05. He stated that C.B.V. caught his right toe a bit

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while running, but that he “had good heel-toe progression on the left and was actually also able to

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get the right heel down pretty well.” AR 305. Dr. Manhart continued to follow C.B.V.’s progress

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over the following months. AR 344-51. During that time, both Dr. Hart and Dr. Manhart

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prescribed and administered additional Botox injections. AR 344-56. In February 2010, C.B.V.

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was measured and molded for solid bilateral ankle/foot orthotics. AR 344.

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d.

Elisa C. Yao, M.D. (Treating Physician)

Dr. Elisa Yao saw C.B.V. at Shriners in December 2009 for follow-up to Botox injections.

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AR 357-58. She reported that he was able to “walk stably,” although he had a tendency to have the

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right toe point in. AR 357. She noted that he was not wearing his orthotics, but that his parents

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reported that he did wear them regularly. Id. Finally, she opined that “[o]verall, [C.B.V.] has been

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doing well. He continues to be active. He is able to walk and run well.” Id.

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e.

Loren Davidson, M.D. (Treating Physician)

Dr. Loren Davidson worked at Shriners and also followed up with C.B.V. following Botox

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injections. See AR 345. In May 2010, Dr. Davidson completed a questionnaire indicating that

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C.B.V. has “mild diplegic cerebral palsy but spasticity of the bilateral lower extremities meets

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criterion of [Listing] 111.07A.” AR 385.

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f.

Christina Spangberg (Physical Therapist)

Christina Spangberg, a physical therapist, saw C.B.V. regularly from March 2009 through

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March 2010. AR 371-76. In a report covering March through December 2009, Ms. Spangberg

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indicated that C.B.V. “has improved his muscle strength and balance. His ambulation is improved

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with heel to toe progression compared to foot flat.” AR 380. She observed that he continued to

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stand with his right foot turned in, but not as much as previously. AR 378. She noted that with

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braces and shoes, he demonstrated increased control of the heel to toe transition bilaterally. AR

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379. However, his “in-toeing increases” when he runs. Id.

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Later treatment notes from March 2010 indicated that C.B.V. had reported “that playing and
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

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walking has become more difficult since the Botox.” AR 371. He also complained of pain in his

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left foot when walking. Id. Ms. Spangberg noted a marked decrease in right calf strength which she

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attributed to Botox injections, but observed that C.B.V. responded well to the therapy. Id.

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g.

Louis Girling, M.D. (Treating Physician)

Dr. Louis Girling first saw C.B.V. in August 2010, when he prepared an assessment for

written report. Id. In the report, Dr. Girling related C.B.V.’s history as told to him by Banuelos at

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the appointment, and also reviewed C.B.V.’s medical history, including the 2007 surgery performed

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by Dr. Kraus, the series of Botox injections at Shriners, and physical therapy that C.B.V. had been

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California Children’s Services. AR 407-09. The assessment comprised a questionnaire and a

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doing. AR 407. Based upon this information, Dr. Girling concluded that C.B.V. had “increased his

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ankle range, increased his speed for walking, increased his truncal strength and alignment and now

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has improvement in his heel-to-toe progression.” AR 408. Dr. Girling observed spasticity

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bilaterally, that C.B.V. tends to hold his right foot in inversion, and that his gait is “somewhat

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crouched.” Id. He stated that C.B.V. was “able to achieve a tandem heel-to-toe gait with

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concentration.” Id. Dr. Girling’s assessment was “[c]erebral palsy, spastic diplegia with an

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abnormal gait as noted.” Id. He expressed concern about “asymmetry in mobility about the hips”

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and ordered an x-ray of the hips. AR 408-09. He also prescribed new hinged orthotics rather than

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the fixed orthotics that C.B.V. was using. AR 409.

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In the questionnaire, Dr. Girling opined that C.B.V.’s condition meets Listing 111.07A. AR

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401. He stated that C.B.V. “requires braces to maintain foot and ankle alignment and achieve near

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normal progression during ambulation.” Id. He also stated that C.B.V. “falls frequently because of

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inturning of his right foot, which causes him to trip.” Id.

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h.

Woodrow W. Jenese, M.D. (Consulting Physician)

Dr. Woodrow Jenese, a board-certified neurosurgeon and independent medical expert,

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testified at the hearing at the request of the ALJ. Dr. Jenese stated that he had reviewed C.B.V.’s

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medical records and that in his opinion C.B.V.’s cerebral palsy did not meet or equal Listing

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111.07A. AR 92, 117-18. When Banuelos’s counsel pressed Dr. Jenese about why Dr. Girling

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would have come to the opposite conclusion, Dr. Jenese stated that Dr. Girling’s clinical
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

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observations apparently described things that Dr. Girling believed were significant to a Listing

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determination, but that those observations did not show that C.B.V. met the Listing. AR 124. Dr.

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Jenese’s position was that because C.B.V. could ambulate, he did not meet Listing 111.07A. Id. He

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gave hypotheticals about conditions that would meet Listing 111.07A, including a child that is in a

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wheelchair or has severe scoliosis. Id. at 124-25.
i.

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Banuelos (C.B.V.’s Mother)

Banuelos testified that C.B.V. “walks crooked” and “falls down very frequently.” AR 99.

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She said that C.B.V. complained “that it hurts him to walk and that he gets tired too much.” AR

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100. She stated that he has gotten a little better with treatment, but that he was “not a normal child”

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and that it was very difficult making him wear the leg braces and taking him to so much therapy.

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AR 101, 102.
j.

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Shirley Veloro (C.B.V.’s Teacher)

Shirley Veloro, C.B.V.’s kindergarten teacher, submitted a questionnaire indicating that

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although C.B.V. has “very bowed legs that affect his running/walking,” he “seems to have found a

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way to adjust to his condition.” AR 280. Ms. Veloro noted that he runs and walks more slowly than

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the other students. Id.

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3.

ALJ’s Determination

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The ALJ discussed all of the record evidence in detail. She credited the opinion of Dr.

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Manhart, who treated C.B.V. over the course of several months, over the opinion of Dr. Girling,

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who saw C.B.V. on only one occasion prior to the close of proceedings before the ALJ. AR 28.

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Noting that Dr. Manhart’s observations regarding C.B.V.’s progress were bolstered by Ms.

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Spangberg’s notes over the course of a year, the ALJ concluded that “Dr. Manhart and Ms.

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Spangberg are more reliable in that there is a longitudinal record of treatment or interaction that is

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lacking with Dr. Girling.” Id. The ALJ commented that Dr. Girling’s own clinical findings that

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C.B.V. achieves “near normal progression during ambulation” when wearing braces undercut his

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opinion that C.B.V.’s condition meets Listing 111.07A. AR 27. The ALJ speculated that Dr.

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Girling may have been under the misimpression that a diagnosis of cerebral palsy is synonymous

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with meeting the Listing, noting that Dr. Girling stated that C.B.V. had met Listing 111.07A as of
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

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July 26, 2004, the date he first was diagnosed with cerebral palsy. Id.
The ALJ also credited the opinion of the medical expert, Dr. Janese, who reviewed all

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available medical records and concluded that C.B.V. did not meet Listing 111.07A. AR 28. The

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ALJ found Dr. Janese’s opinion to be consistent with the observations of Dr. Manhart, Dr. Yao, and

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Ms. Veloro. Id. As discussed above, Dr. Yao reported that C.B.V. was able to “walk stably,”

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although he had a tendency to have the right toe point in, and Ms. Veloro reported that C.B.V. was

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able to walk and run but more slowly than the other children.
The ALJ discounted Dr. Davidson’s opinion that C.B.V.’s condition meets Listing 111.07A,

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noting that Dr. Davidson stated that the Listing was met at C.B.V.’s birth, and concluding that Dr.

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Davidson’s opinion simply is inconsistent with numerous observations of C.B.V. being able to walk,

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run, hop, and play. AR 28.
The ALJ acknowledged Banuelos’s testimony that C.B.V. is not “normal,” and her sadness

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about his condition, AR 27, but the ALJ found that although C.B.V. does have some deficit of motor

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function, it simply is not severe enough to interfere with age-appropriate major daily activities, AR

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25.

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The Court concludes that the ALJ articulated specific and legitimate reasons for failing to

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credit the opinions of Dr. Girling and Dr. Davidson. Moreover, the Court concludes that as the

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record stood when the ALJ made her determination, the opinions of Dr. Manhart and Dr. Jenese, as

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supported by the opinion of Dr. Yao and the non-medical evidence from Ms. Spangberg and Ms.

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Veloro, constitute substantial evidence to support the ALJ’s finding that C.B.V.’s condition does not

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interfere with age-appropriate major daily activities and thus does not meet or medically equal

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Listing 111.07A.

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4.

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In February 2011, shortly after the ALJ issued her unfavorable decisions, Dr. Girling

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prepared a report that was submitted to and made part of the record by the Appeals Council. See AR

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1-5, 412. “[W]hen a claimant submits evidence for the first time to the Appeals Council, which

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considers that evidence in denying review of the ALJ’s decision, the new evidence is part of the

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administrative record, which the district court must consider in determining whether the

Dr. Girling’s Post-Hearing Report

11
ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

1

Commissioner’s decision is supported by substantial evidence.” Brewes v. Comm’r of Soc. Sec.

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Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012). Thus this Court must determine whether adding

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Dr. Girling’s post-hearing report to the record changes its conclusion that the ALJ’s decision is

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supported by substantial evidence.

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Dr. Girling’s February 2011 report noted that C.B.V. continues to be followed by his

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physical therapist, who has informed Dr. Girling that C.B.V. is “back up on his toes and has

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decreasing range motion and decreased right single leg stance.” AR 412. He also noted that

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Banuelos had reported that C.B.V. now is falling nearly every day. Id. On physical examination,

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Dr. Girling found that C.B.V. had a crouched gait with marked intoeing on the right even while

For the Northern District of California

United States District Court

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wearing his leg braces. Id. at 412-13. Dr. Girling opined that C.B.V. “has reverted back to an initial

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contact on the toes on the right side,” and to decreased ankle range of motion and decreased right

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single leg stance. AR 412. He expressed concern that C.B.V. has not responded to repeated Botox

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injections or to intensive physical therapy. AR 413.

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The Court concludes that this report does change the mix of evidence such that it no longer

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is clear that the ALJ’s decision is supported by substantial evidence. Dr. Girling’s February 2011

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report, which is much more recent than Dr. Manhart’s last report, indicates that C.B.V.’s condition

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is regressing; it may be that the progress observed by Dr. Manhart has been lost. Moreover, Ms.

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Spangberg’s optimistic physical therapy notes, which the ALJ relied upon in reaching her decision,

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are called into question by Dr. Girling’s statement that the physical therapist (presumably Ms.

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Spangberg) has noted that C.B.V. is back up on his toes and has lost range of motion. The report’s

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indication that C.B.V. is falling nearly every day presents different circumstances than were

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addressed by the ALJ, who based her decision in part on the fact that C.B.V. fell only

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“occasionally.” See AR 25. Dr. Janese, the independent medical expert whose opinion was given

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“significant weight” by the ALJ, see AR 28, has not had an opportunity to consider whether C.B.V.

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might meet Listing 111.07A in light of the new information contained in Dr. Girling’s February

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2011 report.

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Accordingly, the Court VACATES the ALJ’s decision and REMANDS for further
proceedings, to include consideration of Dr. Girling’s February 2011 report. See Taylor v. Comm’r
12
ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ

1

of Soc. Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011) (remanding to ALJ for consideration of

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new evidence of disability); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (remand

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generally is the proper course when a court reverses an agency determination).
IV. ORDER

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1.

Plaintiff’s motion for summary judgment is DENIED;

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2.

Plaintiff’s alternative motion for remand is GRANTED;

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3.

Defendant’s cross-motion for summary judgment is DENIED;

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4.

The ALJ’s decision is VACATED; and

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For the Northern District of California

For the foregoing reasons, IT IS ORDERED THAT:

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United States District Court

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5.

The matter is REMANDED to the Commissioner for further proceedings consistent

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with this order.

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Dated: September 17, 2013

__________________________________
LUCY H. KOH

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UNITED STATES DISTRICT JUDGE

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ORDER DENYING PLAINTIFF’S MOTION FOR SJ; GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR
REMAND; AND DENYING DEFENDANT’S CROSS MOTION FOR SJ