Opinion
Case No. EDCV 07-0022-RC.
August 15, 2008
MEMORANDUM DECISION AND ORDER
On March 23, 2007, Iran Hernandez ("Hernandez"), on behalf of her minor son Richard E. Hernandez ("Richard" or "plaintiff"), filed a complaint seeking review of the Commissioner's decision denying Richard's application for disability benefits. On August 13, 2007, the Commissioner answered the complaint, and the parties filed a joint stipulation on October 17, 2007.
BACKGROUND I
On April 2, 2004 (protective filing date), Hernandez filed an application on plaintiff's behalf for disability benefits under the Supplemental Security Income ("SSI") program of Title XVI of the Social Security Act, 42 U.S.C. § 1382(a), claiming plaintiff has been disabled since March 2, 2004, due to attention deficit hyperactivity disorder ("ADHD"). A.R. 256-60, 264. The plaintiff's application was initially denied on September 13, 2004, and was again denied on January 27, 2005, following reconsideration. A.R. 235-45. The plaintiff then requested an administrative hearing, which was held on May 2, 2006, before Administrative Law Judge Jay Levine ("the ALJ"). A.R. 246-47, 527-41. On July 27, 2006, the ALJ issued a decision finding plaintiff is not disabled. A.R. 9-18. The plaintiff appealed the decision to the Appeals Council, which denied review on December 11, 2006. A.R. 4-8.II
Richard, who was born on December 16, 1996, is currently 11 years old. A.R. 62, 65, 257. He attends regular educational classes, and has some supplemental special education classes. A.R. 267, 283, 292, 531, 533.On March 12, 2004, Rossalyn Richardson, Ph.D., examined plaintiff at the Riverside County Department of Mental Health and diagnosed him as having combined type ADHD and determined his Global Assessment of Functioning ("GAF") was 54. A.R. 413-14. Dr. Richardson found Richard's appearance was neat, his orientation, affect and speech were within normal limits, his memory was intact, his mood was euphoric, his intelligence was average, and he had no psychotic symptoms; however, he had a short attention span, he was agitated, his judgment was limited, his insight was poor, and his thoughts were concrete. A.R. 413. Dr. Richardson noted Richard had difficulty with attention, could not sit still for any length of time, and shifted from activity to activity. A.R. 414. On April 1, 2004, Elizabeth Roberts, M.D., a psychiatrist, examined Richard, diagnosed him with Oppositional Defiant Disorder ("ODD") and ADHD, determined his GAF was 46, and prescribed medication for Richard. A.R. 410-12. Drs. Roberts and Richardson continued to treat Richard, A.R. 398-09, and on July 29, 2004, Dr. Roberts found: Richard's thoughts were clearly organized and concrete; his attitude was uncooperative; there was evidence of aggressiveness, but no evidence of psychosis; there was no history of a cognitive impairment, developmental delays or abnormality, loss of developmental attainments, regression in behaviors, or problems with the law; Richard was able to maintain a sustained level of concentration when motivated, adapt to new and stressful situations, and perform an age appropriate level of self care. A.R. 406. Dr. Roberts also determined Richard could understand and follow simple instructions; he was defiant and refused to obey his mother; and he did not interact appropriately with others, particularly his mother and his teacher. Id. Finally, Dr. Roberts opined Richard's condition was expected to improve and his "behavioral problems appear to be almost completely as a result of [his] mother's very ineffective [and] inappropriate parenting style [and he] would improve if [his] mother's parenting approach improved." Id.
Although Richard received extensive medical care for his congenital heart defects, see, e.g., A.R. 142-208, 323-88, 434-518, he is only challenging the ALJ's assessment of his mental impairment.
A GAF of 54 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000).
A GAF of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job)." American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000).
On August 12, 2004, Dr. Roberts found Richard's ODD was improving and he was no longer intentionally annoying his mother, who reported Richard was more cooperative and less belligerent, but he still needed constant supervision. A.R. 403. However, on September 16, 2004, Hernandez complained Richard's behavior had worsened at home, he was again being defiant, oppositional and belligerent, and he was getting in trouble at school; thus, Dr. Roberts increased Richard's medication and advised Hernandez to continue to improve her parenting skills. A.R. 401. On September 24, 2004, M.L. Valdes, M.D., examined Richard, noted Richard's intelligence was average, his memory good, he was oriented x3, but he was hyperactive, diagnosed Richard with ADHD, determined Richard's GAF was 50, and changed Richard's medication. A.R. 400, 402.
On August 25, 2004, M. Becraft, M.D., a nonexamining psychiatrist, opined Richard has a severe impairment that does not meet or medically or functionally equal a listed impairment in that he has "no limitation" in acquiring and using information and moving about and manipulating objects, and "less than marked" limitation in attending and completing tasks, interacting and relating with others, caring for himself, and health and physical well-being. A.R. 389-94.
On September 27, 2004, Richard's second-grade teacher noted he had problems acquiring and using information in that he needed additional one-on-one support to accomplish tasks and he has trouble sitting still and behaving in class or at recess. A.R. 292-99. The teacher found Richard could do several of the same problems at once, but then needed feedback and further guidance on all tasks. A.R. 293. The teacher opined Richard has: a "very serious problem" reading and comprehending material, understanding and participating in class discussions, providing organized oral explanations and adequate descriptions, expressing ideas in written form, applying problem- solving skills in class discussions, carrying out multi-step instructions, completing class/homework assignments, completing work accurately without careless mistakes, and working at a reasonable pace and finishing on time; a "serious problem" comprehending oral instructions, understanding school and content vocabulary, comprehending and doing math problems, learning new material, paying attention when spoken to directly, focusing long enough to finish an assigned activity or task, refocusing to task when necessary, waiting to take turns, changing from one activity to another without being disruptive, organizing his own things or school materials, working without distracting himself or others, playing cooperatively with other children, seeking attention appropriately, expressing anger appropriately, asking permission appropriately, following rules, respecting/obeying adults in authority, using language appropriate to the situation and listener, and taking turns in conversation; and an "obvious problem" recalling and applying previously learned material, carrying out single-step instructions, making and keeping friends, relating experiences and telling stories, introducing and maintaining relevant and appropriate topics of conversation, interpreting the meaning of facial expressions, body language, hints, and sarcasm, and using adequate vocabulary and grammar to express thoughts and ideas in general everyday conversation. A.R. 293-95. However, although Richard's teacher noted Richard experiences many of these problems daily or hourly, the teacher indicated no behavior modification strategies had been necessary other than sitting out recess. A.R. 294-95. Richard's teacher further noted that almost all of his speech can be understood by a familiar listener when the topic of conversation is known, and about 1/2 to 2/3 of his speech can be understood when the topic is unknown. A.R. 296. Finally, Richard's teacher also reported Richard has no problems moving about and manipulating objects or caring for himself. A.R. 296-97.
On November 3, 2004, Michael Weiss, M.A., a school psychologist, found Richard eligible for special education assistance since he showed an inability to learn that cannot be explained by intellectual, sensory, or other health factors. A.R. 416-23. Dr. Weiss also found Richard was able to comprehend verbal communication and his speech was fully intelligible, though his nonverbal ability was greater than his verbal ability. A.R. 423. On November 3, 2005, Richard had his one-year Individualized Educational Program ("IEP") review, which resulted in him receiving 90 minutes of a resource specialist's assistance 4 times each week. A.R. 309-15. In 2006, Richard's IEP was reduced to 75 minutes of a resource specialist's assistance 4x each week. A.R. 316-22.
On January 25, 2005, nonexamining psychiatrist K. Gregg., M.D., opined Richard has a severe impairment that does not meet or medically or functionally equal a listed impairment since plaintiff has "no limitation" in moving about and manipulating objects and caring for himself, and he has "less than marked" limitations in acquiring and using information and attending and completing tasks. A.R. 519-25.
DISCUSSION III
The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying a claimant disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Merrill v. Apfel, 224 F.3d 1083, 1084-85 (9th Cir. 2000).
A minor is "disabled" within the meaning of the SSI program if he "has a medically determinable physical or mental impairment, 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); Merrill, 224 F.3d at 1085. "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
The Commissioner has promulgated regulations establishing a three-step sequential evaluation process for the ALJ to follow in a minor's disability case. 20 C.F.R. § 416.924. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity; if so, a finding of nondisability is made and the claim is denied. 20 C.F.R. § 416.924(b). If the claimant is not currently engaged in substantial gainful activity, in the Second Step, the ALJ must determine whether the claimant has a severe medically determinable impairment or combination of impairments; if not, a finding of nondisability is made and the claim is denied. 20 C.F.R. § 416.924(c). If the claimant has a severe impairment, in the Third Step, the ALJ must determine whether the claimant's impairment meets or medically or functionally equals an impairment in the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1, and if the claimant's impairment meets or equals an impairment in the Listing, and meets the durational requirement, disability is presumed and benefits are awarded. 20 C.F.R. § 416.924(d). When the claimant's impairment does not meet or equal a Listing, or does not meet the durational requirement, a finding of nondisability is made and the claim is denied. 20 C.F.R. § 416.924(d)(2).
Applying the three-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since the alleged onset date. (Step One). The ALJ then found plaintiff has a severe impairment. (Step Two). Finally, the ALJ concluded plaintiff does not have an impairment or combination of impairments that meet or medically or functionally equal a Listing; therefore, plaintiff is not disabled. (Step Three).
IV
The mere diagnosis of an impairment listed in 20 C.F.R. Appendix 1, Subpart P, is insufficient, in itself, to support a finding of disability; rather, the claimant also must have the findings shown or symptoms detailed in the listing of that impairment. 20 C.F.R. § 416.925(d); Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990); Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). "To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings `at least equal in severity and duration' to the characteristics of a relevant listed impairment, or, if a claimant's impairment is not listed, then to the listed impairment `most like' the claimant's impairment." Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (citation omitted); Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).
Even if an impairment does not meet the requirements of, or is not medically equal to, a Listing, a minor claimant may be disabled if his impairment or combination of impairments is functionally equivalent to a Listing. 20 C.F.R. § 416.926a;Augustine v. Astrue, 536 F. Supp. 2d 1147, 1151 (C.D. Cal. 2008);Smith v. Massanari, 139 F. Supp. 2d 1128, 1135 (C.D. Cal. 2001). Functional equivalence is measured by assessing the claimant's ability to function in terms of the following six domains, which are "broad areas of functioning intended to capture all of what a child can or cannot do": (i) Acquiring and using information; (ii) attending and completing tasks; (iii) interacting and relating with others; (iv) moving about and manipulating objects; (v) caring for oneself; and (vi) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). An impairment or combination of impairments functionally equals a Listing if it results in "marked" limitations in two domains of functioning or an "extreme" limitation in one domain. 20 C.F.R. § 416.926a(d). In evaluating a claimant's ability to function in each domain, the ALJ should answer the following questions about whether the claimant's impairments affect his functioning, and whether the claimant's "activities are typical of other children [of the same] age who do not have impairments": (1) What activities can the claimant perform? (2) what activities is the claimant unable to perform? (3) which of the claimant's activities are limited or restricted compared to other children the claimant's age who do not have impairments? (4) where does the claimant have difficulty with his activities — at home, in child care, at school, or in the community? (5) does the claimant have difficulty independently initiating, sustaining, or completing activities? and (6) what kind of help does the claimant need to do his activities, how much help is needed, and how often is the help needed? 20 C.F.R. § 416.926a(b)(2)(i)-(vi).
A limitation is "marked" if it "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities[,]" which "is the equivalent of the functioning [the Commissioner] would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean." 20 C.F.R. § 416.926a(e)(2)(i). A limitation is "extreme" if it "interferes very seriously with [the claimant's] ability to independently initiate, sustain, or complete activities"; however, it "does not necessarily mean a total lack or loss of ability to function[;]" rather, "[i]t is the equivalent of the functioning [the Commissioner] would expect to find on standardized testing with scores that are at least three standard deviations below the mean." 20 C.F.R. § 416.926a(e)(3)(i).
The ALJ found Richard does not meet or medically or functionally equal a Listing since his severe mental impairment does not impose any marked or extreme limitations. A.R. 13-18. With regard to the six functional equivalence domains, the ALJ found Richard has: no greater than a moderate limitation in acquiring and using information; no greater than a moderate limitation in attending and completing tasks; no limitation in interacting and relating with others; no limitation in moving about and manipulating objects; no limitation in the ability to care for himself; and no limitation in health and physical well-being. A.R. 14-17. Plaintiff, however, contends these findings are not supported by substantial evidence because the ALJ failed to properly consider the opinions of his treating mental health care professionals, Drs. Roberts and Richardson.
The medical opinions of treating physicians are entitled to special weight because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). Therefore, the ALJ must provide clear and convincing reasons for rejecting the uncontroverted opinion of a treating physician, Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007);Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), and "[e]ven if [a] treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing `specific and legitimate reasons' supported by substantial evidence in the record." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Orn, 495 F.3d at 632.
Here, plaintiff complains that, although the ALJ addressed the opinions of Drs. Roberts and Richardson, "he did not indicate whether he . . . accepted or rejected [their] findings. . . ." Jt. Stip. at 3:26-4:21. This complaint is without factual basis. To the contrary, the ALJ specifically relied on the findings of Drs. Roberts and Richardson — as well as other evidence in the record — in finding plaintiff is not disabled. A.R. 14-18. For instance, in finding Richard has no more than a moderate limitation in his abilities to acquire and use information and in attending and completing tasks, the ALJ relied on Dr. Richardson's mental status examination, which found Richard "neat and fully oriented with euphoric mood, normal affect, average intelligence, intact memory, short attention and concentration, agitated psychomotor activity, limited judgment, poor insight, normal speech, concrete thoughts and no psychotic symptoms." A.R. 15, 413. The ALJ also relied on Dr. Roberts's opinions, noting that Dr. Roberts "diagnosed [Richard] with [ODD] and [ADHD] with a GAF of 46, despite a normal mental status examination[,]" and started him on medication, and also stating "Dr. Roberts explained that the child's `behavioral problems appear to be almost completely as a result of [the] mother's very ineffective and inappropriate parenting style' [and] . . . the child `would improve if [the] mother's parenting approach improved.'" A.R. 15-16 (citation omitted), 406, 410. Thus, the ALJ properly addressed, considered, and relied on the opinions of Drs. Roberts and Richardson in determining plaintiff is not disabled. Bayliss, 427 F.3d at 1216.
Plaintiff also complains that the ALJ erred in characterizing his mental status examination by Dr. Roberts as normal because he was defiant and anxious. Jt. Stip. at 5:15-25. Even assuming arguendo the ALJ's characterization of the mental status examination was erroneous, such error was inconsequential and completely harmless since the clinical findings of the mental status examination by Dr. Roberts fully support the ALJ's conclusion that plaintiff is not disabled. See Tommasetti v. Astrue, ___ F.3d ___, 2008 WL 2762439, *2 (9th Cir. (Cal.)) ("The court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination." (citations and internal quotation marks omitted)); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("A decision of the ALJ will not be reversed for errors that are harmless.").
The plaintiff also complains the ALJ erred in assessing Dr. Roberts's opinion because he did not specifically discuss Dr. Roberts's determination that he had a GAF of 46 when initially seen. Jt. Stip. at 4:26-6:4. While a GAF score may help the ALJ assess a claimant's level of impairment, it is not essential to a decision's accuracy, and the ALJ's failure to rely on the GAF does not constitute an improper application of the law where, as here, the ALJ specifically discussed all the medical evidence in the record, including the opinions of Drs. Richardson and Roberts, and properly relied on that evidence in determining plaintiff is not disabled. Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002); see also Lewis v. Barnhart, 460 F. Supp. 2d 771, 785 (S.D. Tex. 2006) (ALJ did not err in failing to discuss consulting examiner's GAF score since "the ALJ fully discussed and analyzed [the] consultative examination, along with all of the evidence of record.").
ORDER
IT IS ORDERED that: (1) plaintiff's request for relief is denied; and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant.