Kos v. Social Security Administration
Filing
24
OPINION AND ORDER. Based on the foregoing, the Commissioners final decision is REVERSED and REMANDED for further proceedings consistent with this opinion. The ALJ must reevaluate the questions of medical and functional equivalence and explain his ev identiary findings with legally sufficient reasons. The Commissioner may adduce any additional evidence he deems necessary to accuratelyassess Mr. Koss limitations and resolve the outstanding issues. The Clerk is directed to grant judgment for Mr. Kos pursuant to sentence four of 42 U.S.C.§ 405(g). Signed on 9/27/11 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
TYLER J. KOS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social
Security,
Defendant.
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CV 10-1072-MO
OPINION AND ORDER
MOSMAN, J.,
Plaintiff Tyler Kos appeals the Commissioner’s decision denying his application for
childhood supplemental security income payments under Title XVI of the Social Security Act. The
court has jurisdiction under 42 U.S.C. § 405(g). I REVERSE and REMAND the Commissioner’s
decision for further administrative proceedings.
Mr. Kos was born in March 1992. He filed his application in August 2006, when he was 14
years old. He alleged disability since birth due to attention deficit hyperactivity disorder (“ADHD”),
1 - OPINION AND ORDER
a cognitive disorder, depression, and a language disorder. Admin. R. 19, 146, 155. The ALJ issued
his adverse decision in February 2010, when Mr. Kos was almost 18. Id. at 13.
The regulations prescribe a three-step sequential evaluation process for determining whether
a person under the age of 18 is disabled. 20 C.F.R. §§ 416.924, 416.926a; Social Security Ruling
(“SSR”) 09-1p, 2009 WL 396031. The administrative law judge (“ALJ”) found that Mr. Kos was
not engaged in substantial gainful activity and that he had medically determinable impairments
which caused more than minimal functional limitations, viz. ADHD, a cognitive disorder, an
affective disorder, and a language disorder. Admin. R. 19. The ALJ determined that the
combination of Mr. Kos’s impairments did not meet or medically equal any of the presumptively
disabling conditions listed in the regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listing
of Impairments”), and did not satisfy the functional equivalence test of 20 C.F.R. § 416.926a.
Admin. R. 20-30. The ALJ concluded that Mr. Kos was not disabled within the meaning of the
Social Security Act. Id. at 30.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings of fact are supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under
this standard, the Commissioner’s factual findings must be upheld if supported by inferences
reasonably drawn from the record even if evidence exists to support another rational interpretation.
Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
2 - OPINION AND ORDER
DISCUSSION
I.
Claims of Error
Mr. Kos contends the ALJ erroneously concluded that his impairments did not meet or
medically equal Listing 112.02, which covers organic mental disorders, or Listing 112.04, which
covers mood disorders, or both. Mr. Kos also contends the ALJ erroneously determined that he is
not disabled under the functional equivalence test of 20 C.F.R. § 416.926a. Mr. Kos contends the
ALJ erroneously evaluated his functional limitations because he improperly discounted Mr. Kos’s
statements, the statements of his mother, and the treating source opinion of Matthew Pearl,
L.C.S.W., regarding the limiting effects of his impairments.
II.
Meeting Listings 112.02 and 112.04
The Commissioner acknowledges that certain conditions are so severe as to preclude
substantial gainful activity. If the medical evidence establishes that a claimant suffers from such a
condition, the claimant will be presumed to be disabled without further inquiry. Tackett v. Apfel, 180
F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. § 416.924(d)(1). Each presumptively disabling condition
is known as a listing, and the criteria for each listing are enumerated in the Listing of Impairments.
Each listing includes an introductory statement that describes the disorder followed by a set of
medical findings in paragraph A and a set of impairment-related functional limitations in paragraph
B. An individual meets the criteria of the listing when the criteria of both paragraphs A and B are
satisfied. Listing of Impairments § 112.00(A).
Listing 112.02 describes the criteria for organic mental disorders involving abnormalities in
perception, cognition, affect, or behavior associated with dysfunction of the brain. To satisfy
paragraph A for Listing 112.02, a claimant must show medically documented persistence of at least
3 - OPINION AND ORDER
one of a number of findings. Mr. Kos contends the evidence shows four of the necessary findings:
memory impairment; disturbance in personality; disturbance in mood; and disturbance of
concentration, attention, or judgment. The ALJ found that Mr. Kos’s medically determinable
impairments included ADHD and an affective disorder. These findings establish a persistent
disturbance of attention and a persistent disturbance in mood. Accordingly, Mr. Kos met the A
criteria for Listing 112.02.
Listing 112.04 describes the criteria for mood disorders. To satisfy paragraph A for Listing
112.04, a claimant must show a major depressive syndrome, a manic syndrome, or a bipolar
syndrome, plus several specific findings that must be associated with the particular syndrome shown.
Mr. Kos argues he satisfies paragraph A because the evidence shows three of the specific findings
associated with manic syndromes. This argument fails because Mr. Kos did not allege, and there is
no evidence that he has experienced, a manic syndrome. Mr. Kos alleged depression and all the
evidence of mood disturbance supports depressive symptoms. Accordingly, Mr. Kos’s reliance on
findings associated with a manic syndrome is misplaced. Mr. Kos did not argue that he has the
required findings associated with depressive syndromes. Accordingly, Mr. Kos did not satisfy the
criteria for paragraph A of Listing 112.04.
To satisfy paragraph B of Listing 112.02, a claimant must show marked impairment in two
of four specified categories of function. Mr. Kos contends the evidence establishes marked
impairment in three of the four categories: age-appropriate cognitive or communicative function;
age-appropriate social function; and maintaining concentration, persistence, or pace. The paragraph
B criteria of Listing 112.04, for claimants between the ages of 3 and 18 are identical to those for
Listing 112.02.
4 - OPINION AND ORDER
In February 2001, when Mr. Kos was 8 years old and in the third grade, Jim Johnson, Ph.D.,
performed a psychological consultation to evaluate problems he was experiencing with school
performance and social interactions. Dr. Johnson found that Mr. Kos was profoundly impaired in
both immediate and delayed recall due to problems with central auditory processing. Mr. Kos
showed substantial difficulty hearing, understanding, and remembering what he heard, but had no
such difficulty processing and remembering visual and spatial information. Admin. R. 262. Testing
showed Mr. Kos had difficulty with social cues and boundaries, controlling anger, and in social
relationships. Id. at 263-64.
In July 2001, Denise Kossover-Wechter, M.A., tested Mr. Kos for auditory processing
disorders. Mr. Kos scored in the age-equivalent range of younger than four years to seven years on
a test of auditory processing skills. He scored three standard deviations below the mean on a test of
binaural integration which simulates the ability to distinguish the primary message from competing
background noise or to receive unfamiliar instructions in less than optimal listening conditions.
Overall the testing showed Mr. Kos had poor auditory memory and difficulties decoding verbal
information. Id. at 267-73.
In July 2006, Dr. Johnson reevaluated Mr. Kos in the 8th grade. Test scores indicated Mr.
Kos was very slow at processing new information and had a lot of difficulty understanding what he
was being told. His problems understanding language led to inattention, frustration, and behavior
that was oppositional and explosive. Id. at 280.
In December 2006, Dorothy Anderson, Ph.D., reviewed all the evidence in the case record
and concluded it showed that Mr. Kos had marked impairment in interacting and relating with others.
5 - OPINION AND ORDER
Admin. R. 333, 336, 341. She opined that he had less than marked impairment in all other categories
of function and did not satisfy the listings. Id. at 331.
In January 2008, when Mr. Kos was almost 16, Holly Crossen, Psy.D., performed a
psychological evaluation on a referral from the juvenile court system. Testing showed Mr. Kos had
a relative strength in interpreting and organizing visual information. He was weak in verbal
knowledge, the ability to apply verbal skills to new situations, and the ability to process verbally
perceived information.
Dr. Crossen found Mr. Kos’s weakness in expressing himself and
understanding others placed him at the communication level of a child between the ages of 2 and 6,
instead of his chronological age of 16. In communication and adaptive behavior, Mr. Kos scored
in the lowest one percent and in socialization, he scored in the lowest two percent. Admin. R. 362.
When standardized tests are used as the measure of functional parameters, a valid score that
is two standard deviations below the mean for the test is considered a marked restriction under the
regulations. 20 C.F.R. § 416.926a(e); Listing of Impairments § 112.00(C). Dr. Crossen did not
convert Mr. Kos’s low percentile scores in communication, adaptive behavior, or socialization into
standard deviations below the mean for those tests, but her report suggests they approached the two
standard deviation level. She found his overall adaptive functioning score, which was higher
numerically than his scores in communication, adaptive behavior, and socialization, was between
one and two standard deviations below the mean. Admin. R. 362-63.
Mr. Kos contends Dr. Anderson’s findings satisfy one of the two areas of marked impairment
required for paragraph B, because Dr. Anderson found he had marked impairment in social
functioning. The ALJ discounted Dr. Anderson’s finding of marked impairment on the basis that
it was inconsistent with the objective medical evidence. Id. at 22. The ALJ did not identify specific
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conflicting objective medical evidence, however. The testing administered by Dr. Crossen placed
Mr. Kos in the first to second percentile in communication, adaptive behavior, and socialization.
Id. at 362. The third-grade testing by Dr. Johnson showed Mr. Kos had difficulty with social cues
and boundaries, controlling anger, and in social relationships. Id. at 263-64. Eighth grade testing
by Dr. Johnson did not include direct measures of social functioning, but he diagnosed a receptive
communication disorder which had a negative impact on Mr. Kos’s social judgment. Id. at 277, 279.
None of these objective findings are inconsistent with Dr. Anderson’s conclusion. Neither the ALJ’s
decision nor the Commissioner’s brief identified specific medical evidence that refutes Dr.
Anderson’s conclusion. Accordingly, the ALJ’s reason for discounting Dr. Anderson’s findings is
not supported by substantial evidence and cannot be upheld.
Mr. Kos argues that Dr. Crossen’s findings establish marked impairment in age appropriate
communication function. Her findings support very severe functional limitations in communication,
adaptive behavior, and socialization, including test scores that appear to approach the regulatory
standard for marked impairment. There is no express finding that the test scores she obtained were
two standard deviations below the mean for the tests, however. Presumably, this question could
have been resolved through the testimony of the medical expert. Neither the ALJ nor Mr. Kos
inquired of the medical expert whether the test scores were two standard deviations below the mean
or otherwise supported a marked level of impairment in age-appropriate communication. The court
is not equipped or authorized to make such a medical judgment independently. Because paragraph
B requires marked impairment in two categories, and Mr. Kos has only established marked
impairment in social functioning, Mr. Kos failed to prove he met the B criteria for Listing 112.02.
7 - OPINION AND ORDER
III.
Medical Equivalence
If the criteria for a listing are not met, a claimant can show medical equivalence with the
listing by establishing medical findings related to his impairment that are at least of equal medical
significance to those of the listed impairment. 20 C.F.R. § 416.926(a). Mr. Kos argued in his posthearing brief that his combined impairments were medically equivalent to Listings 112.02 and
112.04.
In his decision, the ALJ made the following finding and explanation as to medical
equivalence:
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.924, 416.925 and 416.926).
At the hearing, the medical expert Dr. Grossman testified that the
claimant’s impairments did not meet or equal any of the listings.
Admin. R. 20.
The Commissioner must base the determination of medical equivalence on medical evidence.
Lewis v. Apfel, 236 F.3d 503, 514; 20 C.F.R. § 416.926(b). In determining whether a claimant’s
impairment is medically equal to a listing, an ALJ must explain adequately his evaluation of the
evidence and the combined effects of impairments. Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.
1990). A boilerplate finding is not sufficient to support a conclusion that the claimant’s impairments
are not equivalent to a listing. Lewis, 236 F.3d at 513.
Here the ALJ did not refer to the specific listings he considered or offer any explanation why
Mr. Kos’s theory of medical equivalence with Listings 112.02 and 112.04 failed. An adequate
explanation would require a comparison of the medical findings needed to meet the criteria of
8 - OPINION AND ORDER
particular listings with the findings in the medical evidence. Lester v. Chater, 81 F.3d 821, 829 (9th
Cir. 1995); 20 C.F.R. § 416.929(d)(3). The conclusory statement that Mr. Kos did not equal any
listing provided insufficient explanation to show that the ALJ actually considered medical
equivalence. Marcia, 900 F.2d at 176.
The ALJ’s reliance on the medical expert is not sufficient in this case. Perry Grossman,
M.D., provided medical expert testimony at the administrative hearing. His testimony focused on
the question of functional equivalence, as discussed more fully below, and did not address whether
Mr. Kos’s impairments were medically equal to any particular listing. Admin. R. 52. For example,
Dr. Grossman did not address whether the evaluation by Dr. Crossen showed marked impairment
in age appropriate communication function. If anything, Dr. Grossman’s testimony supports the
conclusion that the ALJ neglected to consider medical equivalence.
Although Mr. Kos presented his theory that the evidence showed medical equivalence with
Listings 112.02 and 112.04 after the hearing, it was well before the ALJ issued his decision and
should have been addressed. The ALJ offered only a conclusory, boilerplate finding and his
determination on the issue of medical equivalence cannot be upheld.
III.
Functional Equivalence
Even if the claimant’s impairment does not meet or medically equal a listing, the claimant
may be disabled if his impairments result in limitations that are functionally equivalent to the
listings. 20 C.F.R. § 416.926a. Functional equivalence is not based on the criteria of a specific
listing. Instead, it is measured by assessing the claimant’s ability to function in six domains, which
represent broad areas of functioning and are intended to encompass everything that a child can and
cannot do: acquiring and using information; attending and completing tasks; interacting and relating
9 - OPINION AND ORDER
with others; moving about and manipulating objects; caring for self; and health and physical wellbeing.. 20 C.F.R. § 416.926a(b)(1). If the evidence shows marked limitation in two of the domains,
the claimant’s impairment is functionally equivalent to the listings. 20 C.F.R. § 416.926a(a); SSR
09-1p, 2009 WL 396031 *1. The ALJ found Mr. Kos had no limitation in three of the six domains
and less than marked limitation in the remaining three, including the domains of acquiring and using
information and interacting and relating with others. Admin. R. 23, 26. Mr. Kos challenges the
findings with respect to those two domains.
A marked limitation is such as to interfere seriously with the ability to function
independently, appropriately, effectively, and on a sustained basis. 20 C.F.R. § 416.926a(e)(2). As
indicated previously, a valid standardized test score that is two standard deviations below the mean
for the test will be considered a marked restriction. Id. ; Listing of Impairments § 112.00(C). Unlike
the determination of whether a claimant meets or medically equals a particular listing, which is
determined based on medical evidence, the determination of functional equivalence must be based
on all the information in the case record about how the claimant’s functioning in all activities is
affected by his impairments. 20 C.F.R. § 416.926a(e); SSR 09-1p, 2009 WL 396031 *1.
A.
Acquiring and Using Information
The ALJ found Mr. Kos had less than marked impairment in this domain. He relied on Dr.
Johnson’s evaluation of Mr. Kos during the 1st grade. Admin. R. 23-24. Mr. Kos scored in the
average range on a test of general overall adaptive functioning. Id. at 260. Achievement tests
demonstrated Mr. Kos was functioning at grade level in most areas. Id. at 261. The ALJ did not
mention other findings in Dr. Johnson’s report or explain why they were not significant measures
of Mr. Kos’s functioning in this domain. For example, Dr. Johnson found Mr. Kos was very weak
10 - OPINION AND ORDER
in the ability to process new information and profoundly impaired in verbal learning. Mr. Kos had
difficulty accumulating details, developing an understanding of a task, and using language to drive
a task. He was profoundly impaired in recall of verbal information and had great difficulty placing
details he heard into memory. The testing predicted substantial difficulty remembering heard
information. Mr. Kos’s language based learning was extraordinarily fragile and his memory for
verbal information was in the 1st percentile. Id. at 262, 264.
The ALJ did not discuss the contemporaneous findings of Ms. Kossover-Wechter, which
suggested Mr. Kos had auditory memory impairment with decoding and prosodic difficulties with
language. She expected Mr. Kos to have difficulty discriminating speech at noise levels that are
typical for the classroom and difficulty remembering information he heard. Id. at 269-70.
The ALJ relied on Dr. Johnson’s reevaluation of Mr. Kos after the 8th grade. The ALJ found
it significant that testing showed Mr. Kos was moderately impaired in recall, an improvement over
the profound impairment found during the 1st grade. Id. at 24. The ALJ did not mention Dr.
Johnson’s finding that Mr. Kos continued to have difficulty with receptive speech reflected in his
inability to sort complex language, accumulate language based details, and process new information
at a normal pace. Id. at 277. Dr. Johnson concluded that Mr. Kos was very slow at processing new
information, struggled in all aspects of learning, and had a lot of difficulty understanding what he
was being told. He required tasks that were simple, structured, organized, and paced. Id. at 280.
The ALJ relied on a function worksheet completed by Mr. Kos’s mother in August 2006,
which indicated Mr. Kos was able to read and understand sentences in comics and cartoons, read and
understand stories in books, magazines, or newspapers, tell time, and understand, remember, and
11 - OPINION AND ORDER
carry out instructions if they were simple and broken down into small amounts of information. Id.
at 24, 166.
The ALJ relied on a teacher questionnaire completed by a special education teacher in
September 2006, when Mr. Kos was in the 9th grade. The ALJ found the teacher rated most of Mr.
Kos’s problems in acquiring and using information as slight problems. Id. at 24. This is not
supported by the record. The teacher rated four areas of function slightly impaired, but found Mr.
Kos had serious or very serious problems with comprehending oral instructions, understanding
vocabulary, understanding and participating in discussions, providing organized oral explanations
and adequate descriptions, and expressing ideas in written form. Id. at 212. Mr. Kos was reading
and doing mathematics at 6th grade level, and spelling at 7th grade level. Id. at 211.
The ALJ correctly noted that Dr. Anderson opined that Mr. Kos had less than marked
impairment in acquiring and using information. Id. at 24. Dr. Anderson reviewed the case record
in December 2006, and found it supported serious problems with oral and written expression,
understanding instructions and vocabulary and related problems. She did not believe it supported
marked impairment, but her worksheet does not explain why. Id. at 333, 336. Notably, her review
and opinion predated Dr. Crossen’s evaluation in January 2008.
The ALJ relied on Dr. Crossen’s evaluation, but mentioned only that Mr. Kos exhibited
strength in using visual information. Id. at 24. As described previously, Dr. Crossen found Mr. Kos
was weak in verbal knowledge, applying verbal skills to new situations, processing verbally
perceived information, expressing himself, and understanding others. Dr. Crossen placed Mr. Kos
at the communication level of a two- to six-year-old, instead of his chronological age of 16. In
communication and adaptive behavior, Mr. Kos was in the 1st percentile. Id. at 362. The ALJ
12 - OPINION AND ORDER
neglected to explain why these portions of Dr. Crossen’s report were not significant in assessing Mr.
Kos’s functioning in this domain.
The ALJ’s decision does not provide sufficient explanation to show that he considered all
the evidence of impairment in this domain. Accordingly, the court is unable to determine that his
conclusion is supported by substantial evidence.
B.
Interacting and Relating with Others
The ALJ found Mr. Kos had less than marked impairment in this domain. The ALJ relied
on Dr. Johnson’s report from his 1st grade evaluation in 2001. At that time, Mr. Kos’s subjective
reports indicated he did not see himself as having significant problems with interpersonal
relationships, although he did not get along with a little girl in his class. Id. at 260, 263. Mr. Kos’s
mother told Dr. Johnson that he was about average in social functioning, but also noted he was
aggressive, hyperactive, inattentive, and had significant difficulty being compliant. Id. at 262-63.
The ALJ did not mention that Dr. Johnson found Mr. Kos had weakness in social interaction due to
difficulty processing formal and informal social information typical of kids who miss social cues.
Id. at 260.
At his reevaluation after the 8th grade in 2006, Dr. Johnson said Mr. Kos’s social skills
appeared to be adequate during his interview, but that social judgment was likely to be affected by
his rapidly cycling mood and his impulsiveness. Id. at 275. In school, Mr. Kos was exhibiting angry
outbursts and he would become irrational when upset. Occasionally, his mother had to remove him
from school during such episodes. Id. at 276. Mr. Kos’s social judgment was limited by his
difficulty with receptive speech and his inability to sort complex language. Id. at 277.
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In August 2006, Mr. Kos’s mother reported that he did not get along with her or other adults,
but had friends and seemed to get along with his siblings and teachers. Id. at 167. The ALJ
considered the teacher questionnaire completed by a special education teacher in September 2006,
when Mr. Kos was in the 9th grade. The ALJ said the teacher rated most of Mr. Kos’s problems in
interacting and relating with others as only slight problems. Id. at 27. This interpretation of the
questionnaire cannot be upheld. The teacher indicated that Kos had daily obvious and serious
problems playing cooperatively with other children, seeking attention appropriately, expressing anger
appropriately, following rules for classes or games, interpreting social cues such as facial
expressions, body language, hints, or sarcasm, and using adequate vocabulary to express himself in
general, everyday conversation. Mr. Kos required behavior modification strategies including
placement in alternative schools, behavior coaching, social skills class, and speech and language
services with objectives of increasing his ability to seek attention appropriately, to interpret social
cues, and to express himself in conversation. Id. at 214. The ALJ failed to account for these daily
limitations when he found the questionnaire supported only slight problems.
Matthew Pearl, L.C.S.W., saw Mr. Kos in weekly counseling session beginning in February
2007. In April 2007, Pearl wrote to Mr. Kos’s primary care provider, to recommend intervention
by a child psychiatrist. Mr. Kos had been transferred to a new school placement due to behavioral
problems, but continued to have behavioral problems at home and at school. Mr. Kos’s anger was
easily triggered by peers. Pearl predicted that without intensive psychiatric intervention, Mr. Kos’s
behavior would lead to increased risk and contact with the juvenile justice system. Id. at 369. The
ALJ conceded that Pearl indicated Mr. Kos was having behavior problems, but did not explain why
these supported a less than marked level of impairment. Id. at 27.
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In July 2007, Pearl completed a mental impairment questionnaire indicating Mr. Kos had
marked difficulties maintaining social functioning. Id. at 354. He said Mr. Kos had shown an
inability to function outside a highly supportive school situation. Id. at 355. He assessed Mr. Kos’s
global functioning over the preceding year at 42. Id. at 348. In December 2009, Pearl completed
another questionnaire indicating a similar functional level with additional symptoms of anti-social
behavior such as involvement in gang culture and juvenile delinquency including charges for
criminal mischief and burglary. Id. at 382. The ALJ did not discuss this evidence specifically.
In January 2008, Dr. Crossen diagnosed Mr. Kos with a conduct disorder manifested by
physical cruelty to others, deliberate destruction of property belonging to others, breaking into a
house, shoplifting, noncompliance with parental restrictions, running away from home, and truancy.
Id. at 364-65. The ALJ did not discuss the impact of this evidence on his determination that Mr. Kos
had less than marked impairment in interacting and relating with others.
The ALJ relied on Mr. Kos’s hearing testimony to the effect that his ability to get along with
other students had gotten better by the time he left school. Id. at 27. Mr. Kos also testified that he
had anger and frustration problems in the 8th grade and frequently was kicked out of class. Id. at 41.
He got into fights with other students and had trouble keeping friendships. Id. at 43. He attended
special schools after the 6th grade, and in 10th grade was transferred to a lockdown school for students
with behavior problems such as fighting with other students and teachers. Id. at 46-47. The ALJ did
not explain how this testimony was weighed in his determination that Mr. Kos did not have marked
impairment in interacting and relating with others.
As with his evaluation of the domain for acquiring and using information, the ALJ’s decision
does not provide sufficient explanation to show that he considered all the relevant evidence of
15 - OPINION AND ORDER
impairment in the domain for interacting and relating with others. Accordingly, the court is unable
to determine that the ALJ’s conclusion is supported by substantial evidence.
IV.
Evaluation of Pertinent Evidence
Mr. Kos contends the ALJ’s failed to properly assess his functional limitations because he
disregarded evidence and improperly discounted Mr. Kos’s subjective statements, the statements of
Mr. Kos’s mother, and the findings of Matthew Pearl, regarding the limiting effects of his
impairments.
A.
Credibility Determination
In deciding whether to accept subjective statements, an ALJ must perform two stages of
analysis. The first stage is a threshold test in which the ALJ must determine whether the claimant
has produced objective medical evidence of an underlying impairment that could reasonably be
expected to produce the symptoms alleged. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996);
Cotton v. Bowen, 799 F.2d 1403, 1407-08 (9th Cir. 1986). If the claimant surmounts this threshold,
the ALJ must proceed to the second stage, where the ALJ may discredit the claimant’s testimony
regarding the severity of symptoms by providing clear and convincing reasons for doing so.
Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Smolen, 80 F.3d at
1283. It is not sufficient for the ALJ to make a general assertion that a claimant is not credible. The
ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints are
not credible.” Dodrill v. Shalala, 12 F.3d 915, 917-18 (9th Cir. 1993); Holohan v. Massanari, 246
F.3d 1195, 1208 (9th Cir. 2001). The findings must be sufficiently specific to permit the court to
conclude that the ALJ did not discredit the claimant arbitrarily. Orteza v. Shalala, 50 F.3d 748, 750
(9th Cir. 1995).
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Here the ALJ found that Mr. Kos’s medically determinable impairments could reasonably
be expected to produce some of his alleged symptoms;
however, the statements concerning the intensity, persistence and
limiting effects of the claimant’s symptoms are not credible to the
extent they are inconsistent with the finding that the claimant does not
have an impairment or combination of impairments that functionally
equals the listings for the reasons explained below.
Admin. R. 21.
Unfortunately, the ALJ did not identify which of Mr. Kos’s statements were not credible and
the purported explanation of reasons amounted to no more than a recitation of evidence supporting
the ALJ’s decision which did not account for pertinent evidence supporting Mr. Kos’s claim, as
described in earlier sections of this opinion. The ALJ’s decision does not meet the clear and
convincing standard of explanation and his findings are not sufficiently specific to persuade the court
that he did not arbitrarily discredit Mr. Kos’s testimony. The credibility determination cannot be
sustained.
B.
Lay Witness Statements
In considering whether a child claimant has marked limitations with respect to the six
domains concerning functional equivalence under 20 C.F.R. § 416.926a, the Commissioner is
required to consider all relevant information in the record, including, among other things,
information concerning the child's level of functioning from his parents, teachers, and other people
who know him. 20 C.F.R. §§ 416.924a(a)(2), 416.926a(e)(1). Accordingly, an ALJ must consider
the statements of non-medical sources who are in a position to observe a claimant’s symptoms and
daily activities. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009); Stout v. Comm’r, Soc. Sec.
Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). Such lay witnesses are competent to testify regarding
17 - OPINION AND ORDER
the claimant’s condition. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Lay testimony as to
the claimant’s symptoms or how an impairment affects the claimant’s activities cannot be
disregarded without comment. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). If the ALJ
wishes to discount lay witness testimony, he must give reasons that are germane to the witness. Id.;
Bayliss v. Barnhart, 427 F.2d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.
2001).
In January 2010, Mr. Kos’s mother provided a recorded statement after she was denied the
opportunity to testify at Mr. Kos’s administrative hearing. She said that Mr. Kos cannot stay on task
and has angry, violent outbursts on a daily basis. Admin. R. 241. She said his auditory processing
disorder prevents him from understanding what he is told and causes him to become frustrated and
can lead to oppositional behavior, including physical fights. Id. at 242. She said Mr. Kos could
concentrate for about two hours if he had personal support and encouragement, but for only about
15 minutes on his own. Id. at 243. She described his troubled educational history of being removed
from and transferred to alternative schools for behavioral and academic problems. Id. at 245-46.
She did not think Mr. Kos could be employed because of anger and frustration stemming from his
auditory processing problems and inability to understand tasks and changes in work routine. Id. at
248. The ALJ impermissibly disregarded Ms. Kos’s testimony without comment. Nguyen, 100 F.3d
at 1467.
Social Worker Pearl had a treating relationship with Mr. Kos based on weekly counseling
sessions beginning in early 2007. Admin. R. 370-79. Pearl wrote the letter and two questionnaires
described previously, indicating Mr. Kos functioned globally at a low level, had marked impairment
18 - OPINION AND ORDER
in social functioning, and had a poor prognosis due to life stressors and lack of support in the home.
The ALJ explicitly addressed only Pearl’s opinion regarding Mr. Kos’s prognosis. Id. at 22.
The regulations treat social workers as “other sources.” 20 C.F.R. § 416.913(a), (d). The
statements of “other sources” are evaluated as lay witness statements. Turner v. Comm’r of Soc.
Sec., 613 F3d 1217, 1223-24 (9th Cir 2010). Accordingly, to properly discount Pearl’s opinion, the
ALJ was required to give reasons supported by substantial evidence and germane to the witness. Id.;
Lewis v. Apfel, 236 F.3d at 511. The ALJ discounted Pearl’s opinion because it was not supported
by the objective evidence in the record, it was inconsistent with the opinion of Dr. Grossman, and
because Pearl is not an acceptable medical source under the regulations.
The ALJ’s reasoning is insufficient to discredit Pearl’s opinion. The conclusion that Pearl’s
opinion is unsupported by medical evidence is not entirely accurate. There is psychological testing
and clinical evidence supporting his conclusion that Mr. Kos has marked limitations in social
functioning, for example. Dr. Anderson reviewed the case record and reached the same conclusion.
Admin. R. 333, 336, 341. The lack of medical support is not a proper basis for discrediting a lay
witness, in any event. Bruce, 557 F.3d at 1116. Pearl’s opinion was supported by his own clinical
findings based on weekly counseling sessions over an extended period of time. This relationship
placed Pearl in a position to observe Mr. Kos’s symptoms, interactions with others, and daily
activities. Such observations, instead of objective medical evidence, are the basis of lay witness
statements. Lay witness statements do not require objective medical support because they are not
medical opinions.
Dr. Grossman reviewed the record and found that Mr. Kos had difficulty interacting and
relating to his mother, but got along well with others. On that basis, he concluded Mr. Kos had less
19 - OPINION AND ORDER
than marked limitations in the domain for interacting and relating to others. Admin. R. 52-53. Dr.
Grossman did not discuss Pearl’s treatment records or opinion. He indicated that Mr. Kos’s
interactions with the juvenile justice system and resulting referrals for mental health treatment were
beyond the scope of his medical review. Id. at 53-54. He suggested Mr. Kos’s anti-social behavior
resulted from drug and alcohol problems, a proposition that is not supported in the record. Admin.
R. 54-55. Because Dr. Grossman’s testimony does not appear to account for all the evidence in the
case, I am persuaded that the ALJ relied too heavily on his opinion to discredit Pearl’s findings.
CONCLUSION
Based on the foregoing, the Commissioner’s final decision is REVERSED and REMANDED
for further proceedings consistent with this opinion. The ALJ must reevaluate the questions of
medical and functional equivalence and explain his evidentiary findings with legally sufficient
reasons. The Commissioner may adduce any additional evidence he deems necessary to accurately
assess Mr. Kos’s limitations and resolve the outstanding issues.
The Clerk is directed to grant judgment for Mr. Kos pursuant to sentence four of 42 U.S.C.
§ 405(g).
DATED this
27th
day of September, 2011.
/s/ Michael W. Mosman
Michael W. Mosman
United States District Judge
20 - OPINION AND ORDER
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