Lyons-Brandvold v. Commissioner Social Security Administration

Filing 23

OPINION AND ORDER: For the reasons stated above, the decision of the Commissioner is REVERSED and this case is REMANDED for further proceedings. Signed on 12/12/2018 by Judge Michael W. Mosman. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
CYNTHIA L.-B. on behalf of
I. B.-Y. (a minor child),1
Plaintiff,

v.

No. 3:17-cv-01793-MO
OPINION AND ORDER

NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

MOSMAN,J.,
Cynthia L.-B., on behalf of her minor child I. B.-Y. ("Plaintiff'), seeks judicial review of
the final decision of the Commissioner of the Social Security Administration ("Commissioner")
denying Supplemental Security Income (SSI) under Title XVI of the Social Security Act ("the
Act"). For the reasons set forth below, the decision of the Commissioner is REVERSED and this
case is REMANDED for further proceedings.

1

In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the adult nongovemmental party in this case. Initials are used for the first and last name of the
minor child nongovemmental party in this case.
1 - OPINION AND ORDER

BACKGROUND
A. Plaintiffs Application for SSI Benefits
Plaintiffs mother, Cynthia L.-B., filed an application for SSI on behalf of Plaintiff on
November 27, 2013. Tr. 18. Plaintiff is alleged to have been disabled since his birth in April
2011. Tr. 18. An administrative hearing was held on February 9, 2016, before an administrative
law judge (ALJ). Tr. 18. Plaintiff was represented by counsel at the hearing and a Medical
Expert was the only witness to testify. Tr. 18. The ALJ held a supplemental hearing on
February 25, 2016, in which Plaintiff was again represented by counsel. Both Plaintiff and
Plaintiffs mother testified at the supplemental hearing. Tr. 18. The ALJ then issued an opinion
finding that Plaintiff was not disabled. Tr. 36. Plaintiff timely requested review by the Appeals
Council. Tr. 1. The Appeals Council denied Plaintiffs request for review on September 6,
2017, making the ALJ' s determination that Plaintiff was not disabled the final decision of the
Commissioner. Tr. 1. Plaintiff then timely filed this action challenging the Commissioner's
decision.
B. The Three-Step Analysis
A child claimant under the age of eighteen is disabled if he can demonstrate "a medically
determinable physical or mental impailment, which results in marked and severe functional
limitations, and which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i).
Pursuant to 20 C.F.R. § 416.924(a), a child's disability claim is assessed according to a threestep sequential evaluation process. In the first step, the ALJ must determine whether the child is
engaged in "substantial gainful activity." 20 C.F.R. § 416.924(b). Substantial gainful activity is
defined as work involving significant mental or physical activities of the sort usually done for

2 - OPINION AND ORDER

pay or profit. 20 C.F.R. § 416.972. If the child is engaged in substantial gainful activity, he is
not disabled within the meaning of the Act. 20 C.F.R. § 416.924(b). If the child is not
performing substantial gainful activity, the analysis proceeds to step two. In step two, the ALJ
must determine if the child suffers from a medically determinable impairment that is "severe."
20 C.F.R. § 416.924(c). An impairment or combination of impairments is "severe" if it is more
than "a slight abnormality or combination of slight abnormalities that causes no more than
minimal functional limitations." Id If the claimant has a severe impairment, the analysis
proceeds to step three. In step three, the ALJ must determine if the child's severe impairment
meets, medically equals, or functionally equals one or more of the presumptively disabling
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If an impairment meets the
criteria of a listed impairment, then the child is considered disabled. 20 C.F .R. § 416.924(d)(l ).

If the impairment does not meet, medically equal, or functionally equal the severity of one or
more of the listed impairments, then the child is not disabled under the Act. 20 C.F.R. §
416.924(d)(2).
C. The ALJ's Findings in This Case
The ALJ perfmmed the three-step sequential process for determining whether a child
claimant is disabled. See 20 C.F.R. § 416.924(a). At step one, the ALJ stated that Plaintiff had
not engaged in substantial gainful activity since the date of application for benefits. Tr. 21. At
step two, the ALJ determined that Plaintiff had two severe impairments: anxiety disorder and
speech disorder. Tr. 21. In finding these impairments severe, the ALJ placed "great weight" on
the opinion of the Medical Expert, who testified at the administrative hearing about Plaintiffs
medical record. Id At the third step, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met, medically equaled, or functionally equaled

3 - OPINION AND ORDER

the severity of one of the listed impairments in 20 C.F .R. Patt 404, Subpart P, Appendix 1. The
ALJ again gave "great weight" to the Medical Expert's opinion at step three. Tr. 22. Because
the ALJ determined that Plaintiffs impairments did not meet, medically equal, or functionally
equal the severity of one of the listed impairments, Plaintiff was not disabled under the Act.

STANDARD OF REVIEW
A district court must affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial
evidence "means such relevant evidence as a reasonable mind might accept as adequate to
suppo1t a conclusion." Richardson v. Perales, 402 U.S. 389,401 (1971) (quoting Consolidated

Edison Co. v. NLRB, 305 U.S. 197,229 (1938)). In reviewing the Commissioner's alleged
eITors, a comt must weigh "both the evidence that supports and detracts from the
[Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The
Commissioner's interpretation must be upheld even if the evidence is susceptible to several
rational interpretations. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The
Commissioner's decision will not be reversed for harmless eITor. Id.

DISCUSSION
The parties agree that the ALJ erred in evaluating the opinion of the Medical Expert at
step three of the sequential evaluation process and, therefore, that this case should be remanded
to the Commissioner. The only issue that I must decide is whether benefits should be awarded
immediately upon remand or whether further proceedings are watTanted. Because I am not
convinced that the record has been fully developed, I remand this case to the Commissioner for
fu1ther proceedings.

4 - OPINION AND ORDER

A. The ALJ' s Error
After determining that Plaintiff had the severe impairments of anxiety disorder and
speech disorder, the ALJ was required to dete1mine if the severity of Plaintiffs impairments met,
medically equaled, or functionally equaled the severity of one or more of the impairments listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.924(d). The ALJ and the
Medical Expert agreed that the appropriate listing was 112.06, "Anxiety Disorders." 20 C.F.R.
Part 404, Subpart P, Appendix 1, § 112.06 (2015). The criteria for listing 112.06 was met if a
claimant satisfied the requirements of two paragraphs: paragraph A and paragraph B. 2 Id. To
satisfy paragraph A, a claimant was required to have medically documented findings of at least
one of seven factors. Id. Paragraph B had different requirements for children between ages one
and three and for children aged three and older. To satisfy paragraph B, a claimant between the
ages of one and three was required to have medically documented findings of at least one out of
four factors. Id. A claimant aged three and older was required to have medically documented
findings of at least two out of the four factors. Id.
Because Plaintiff was four years old at the time of the administrative hearing and
disability was alleged starting at Plaintiffs birth, the ALJ was required to assess listing 112.06
for both the time when Plaintiff was between the ages of one and three and the time when
Plaintiff was aged three and older. The ALJ con-ectly asked the Medical Expert to testify about
both time periods. The Medical Expert stated that Plaintiff met the requirements of paragraph A
in listing 112.06. Tr. 54-56. The Medical Expert also stated that Plaintiff met the criteria for

2

I review the Commissioner's decision using the regulations in effect at the time of that
decision. Because the ALJ's opinion was issued on March 25, 2016, and the 2016 edition of 20
C.F.R. Part 404, Subpart P, Appendix 1 was issued on April 1, 2016, I review the
Commissioner's decision using the 2015 edition of the regulations.

5 - OPINION AND ORDER

one of the factors in paragraph B for the period between ages one and three. Tr. 57-58. Moving
to the period when Plaintiff was three and older, the Medical Expe1i was more equivocal. First,
the Medical Expe1i concluded that the medically documented finding that satisfied paragraph B
when Plaintiff was between the ages of one and three was not documented when Plaintiff was
aged three and older. Tr. 58-59. Regarding the remaining three factors in paragraph B, the
Medical Expert stated that he believed one factor was met when Plaintiff was age three and older
and two other factors lacked specific evidence in the record. Tr. 59-60.
The ALJ claimed to place "great weight" on the opinion of the Medical Expert at step
three of the sequential analysis, finding that Plaintiff did not have an impairment or combination
of impairments that met, medically equaled, or functionally equalled the severity of one of the
listed impairments. Tr. 22. But that finding contradicts the Medical Expert's testimony. See Tr.
54-58. By stating that Plaintiff satisfied one factor from paragraph A and one factor from
paragraph B, the Medical Expe1i testified that Plaintiff met the requirements for listing 112.06
between ages one and three. See id.; 20 C.F.R. Pmi 404, Subpmi P, Appendix 1 § 112.06. By
assigning "great weight" to the Medical Expert's opinion while coming to a contrary conclusion,
the ALJ implicitly rejected the Medical Expert's opinion. Because the ALJ did not offer specific
reasons for rejecting the testimony of the Medical Expert, the ALJ's decision was not based on
"substantial evidence." See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). This en-or
was not harmless and Commissioner's decision must therefore be reversed and remanded.
B. Remand for Fmiher Proceedings
Under 42 U.S.C. § 405(g), a district comi "shall have the power to enter ... a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing." Whether to remand for fu1iher proceedings is a

6 - OPINION AND ORDER

decision that is based on the likely utility of such proceedings. Harman v. Apfel, 211 F.3d 1172,
1179 (9th Cir. 2000). A remand for an award of benefits is appropriate "only in 'rare
circumstances' where no useful purpose would be served by further administrative proceedings
and the record has been fully developed." Treichler v. Comm 'r ofSoc. Sec. Admin., 775 F.3d
1090, 1100 (9th Cir. 2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir.2012); Moisa v.
Barnhart, 367 F.3d 882, 886 (9th Cir. 2004)). Whether to deviate from the ordinary rule that a
case should be remanded to the Commissioner for further proceedings is a decision that is within
the discretion of the Court. Id
Although the Commissioner concedes that the ALJ erred, the parties disagree about the
utility of further administrative proceedings. There is no dispute that the Medical Expert
testified that Plaintiff met the requirements for listing 112.06 between the ages of one and three.
Def.' s Br. [21] at 4. But this testimony does not necessarily support a finding that the
requirements of listing 112.06 were met. In order to find that Plaintiffs social functioning met
the requirements oflisting 112.06, the ALJ was required to reference documentation by an
"appropriate standardized test" or "other medical findings of an equivalent abnormality of social
functioning." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 112.02 B.l(c). The Medical Expert
testified that he believed Plaintiff had "social function at a level generally acquired by children
no more than one-half the child's chronological age." Tr. 57. Whether the Medical Expert relied
upon the type of documentation required by listing 112.06 to arrive at this conclusion is an issue
that is not resolved by the present administrative record. Remand for further proceedings would
allow the parties to further develop the record with respect to the severity of Plaintiffs
impairment between the ages of one and three.

7 - OPINION AND ORDER

Despite Plaintiffs argument to the contrary, the Medical Expert's testimony regarding
the severity of Plaintiffs impairment does not suggest that Plaintiff met the requirements for
listing 112.06 at age three and older. The Medical Expert initially stated that Plaintiff satisfied
one of the paragraph B factors: "marked impairment in age-appropriate cognitive/communicative
function." Tr. 58; 20 C.F.R. Part 404, Subpart P, Appendix 1 § 112.02 B.2(a). But the Medical
Expert withdrew that opinion after realizing that the exhibit he had relied on documented
Plaintiffs impairment prior to age three. Tr. 59. The Medical Expert further testified that he
believed Plaintiff met one factor and did not have enough evidence to offer an opinion on the
remaining two factors. Because the Medical Expert did not offer testimony that Plaintiff
satisfied the requirements of listing 112.06 by medically documented findings of at least two out
of four factors in paragraph B, this is not a case in which a remand for the award of benefits is
appropriate. Remand for further proceedings will allow the parties to further develop the
administrative record regarding whether the requirements for listing 112.06 were met for the
period when Plaintiff was aged three and older.

8 - OPINION AND ORDER

CONCLUSION
For the reasons stated above, the decision of the Commissioner is REVERSED and this
case is REMANDED for further proceedings.

IT IS SO ORDERED.
DATED this __[}1(ay of December, 2018.

Chief United S

9 - OPINION AND ORDER