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M.B. v. Colvin

United States District Court, Ninth Circuit

August 7, 2013

M.B. a minor (by the mother, Deborah Beymer), Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


BERNARDO P. VELASCO, District Judge.

Plaintiff's mother filed this action for review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The United States Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 73, having received the written consent of both parties.


Plaintiff's mother protectively filed an application for Supplemental Security Income ("SSI") on January 11, 2008, alleging an onset of disability beginning January 11, 2008 due to mental problems: learning difficulties; behavioral impairments; difficulty taking care of personal needs; and difficulty paying attention and sticking to a task. Transcript/Administrative Record ("Tr.") 106-12, 113, 117-128. The application was denied initially and on reconsideration. Tr. 69-71, 72-74. A hearing before an Administrative Law Judge ("ALJ") was held on January 22, 2010. Tr. 57-68. The ALJ issued a decision on June 4, 2010, finding Plaintiff, 9 years old on the date of the ALJ's decision, had severe impairments of attention deficit hyperactivity disorder (ADHD; learning disorder; and explosive disorder, but was not disabled within the meaning of the Social Security Act. Tr. 18-38. This decision became the Commissioner's final decision when the Appeals Council denied review. Tr. 1-4.

Plaintiff's mother then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1) For reasons that follow, the Court reverses the decision of the Commissioner and remands for an immediate award of benefits.


A person under the age of 18 will be considered disabled and eligible for Supplemental Security Income (SSI) 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). The Commissioner employs a three-step sequential process to evaluate SSI claims for minors. First, if the claimant is engaged in substantial gainful activity, he is not disabled. 20 C.F.R. § 416.924(b). Second, if the claimant does not have a medically determinable severe impairment(s), in that the impairment does not cause more than minimal functional limitations, he is not disabled. 20 C.F.R. § 426.924(c). Third, if the claimant's impairment does not meet, medically equal, or functionally equal an impairment in the listings, he is not disabled. 20 C.F.R. § 924(d). There are six areas the Commissioner assesses for functional equivalence: acquiring and using information; attending and completing tasks; interacting and relating with others; moving about and manipulating objects; caring for yourself; and health and physical wellbeing. 20 C.F.R. § 416.926a(b).

The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla but less than a preponderance." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, "cannot be affirmed simply by isolating a specific quantum of supporting evidence." Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).


Plaintiff argues that the ALJ failed to give controlling weight to his treating psychiatrist's opinion. In May, 2006, Plaintiff underwent a psychiatric intake evaluation with psychiatric nurse practitioner Karen Van Wie of Providence Service Corp., because of worsening temper tantrums and aggressive behavior towards others. Tr. 355. Ms. Van Wie assessed generalized anxiety disorder and post-traumatic stress disorder, as well as victim of neglect and rule out attention deficit hyperactivity disorder (ADHD). Ms. Van Wie assigned Plaintiff a GAF score of 45 to 50.[1] She prescribed medication and recommended an evaluation to rule out dyslexia, learning disorder, and color blindness. Tr. 359.

In November 2006, Plaintiff's care was transferred to treating psychiatrist Michael Mardis, M.D., at Providence, who conducted an initial exam of Plaintiff and diagnosed him with ADHD, Intermittent Explosive Disorder, and Anxiety Disorder, and considered a diagnosis of Pervasive Developmental Disorder Syndrome. Tr. 393. The administrative record contains medical records from Dr. Mardis dated from the initial evaluation through October 2009. Tr. 345-47, 361-64, 367-80, 383-86, 388-89, 391-95, 407-21, 423, 454-59, 462, 482-84. During the course of treatment, Dr. Mardis prescribed numerous medications for Plaintiff's various symptoms, summarized in Dr. Mardis's psychiatric update containing a detailed medication report and description of each medication's efficacy, dated October 30, 2009.[2] Tr. 482. In October 2009, Dr. Mardis diagnosed Plaintiff with Asperger's disorder, ADHD not otherwise specified, mood disorder not otherwise specified, generalized anxiety disorder, and multiple learning disorders, and noted:

[Plaintiff] has shown some improvement with his ADHD symptoms with medications, however he continues to have difficulties in that area. Some of the ADHD symptoms may actually be related to anxiety. The aggression has been a continual problem, and has shown some improvement with medications. Anxiety has not improved at all in the past few years. Even with the recent addition of an anti-anxiety agent. Social skills have shown some improvement with time, as he now has one good friend that he gets together with fairly often and expresses a desire to be with. He has not required any psychiatric hospitalizations or residential treatment placements.

Tr. 482, 484. Dr. Mardis completed a Childhood Disability Evaluation Form and opined that Plaintiff had marked limitations in acquiring and using information, with "some difficulties with learning disabilities - with reading and math, as well as writing"; marked limitations with attending and completing tasks, with "significant difficulties with sustaining his attention in tasks, and in focusing on relevant stimuli, leading to difficulties in school and poor follow through at home"' extreme limitations in interacting and relating with others, with "frequent episodes of aggression to family members, leading to extreme disruption at home"; marked limitations in health and physical well-being, "due to aggressive incidents, anger, and significant anxiety over timing of events, contamination fears." Tr. 485-86.

The ALJ acknowledged Dr. Mardis as Plaintiff's treating psychiatrist but gave Dr. Mardis's opinion minimal weight, finding the opinion and evaluation over-restrictive based on Dr. Mardis's own treatment notes and other evidence of record. Tr. 26. The ALJ further discounted Dr. Mardis's opinion because of the possibility that Dr. Mardis submitted his opinion in an effort to assist Plaintiff because Dr. Mardis sympathized with the Plaintiff. Tr. 26. The ALJ gave great weight to the opinions of reviewing State Agency psychologist Jocelyn Fuller, Ph.D., and the other State Agency reviewing physicians who affirmed Dr. Fuller's assessment.[3] Tr. 26. Reviewing psychologist Dr. Fuller's opinion contradicted Dr. Mardis's opinion. Dr. Fuller found no limitation in health and physical well-being, and less than marked limitations in all other functional equivalence categories. Tr. 447-452. Plaintiff was examined by State Agency psychologist and speech pathologist Judith Kroese, Ph.D., who concluded that, with regard to intellectual functioning, "his overall score was within the Borderline range" and his "verbal intellectual functioning was within the Low Average range as well as his working memory." Tr. 436. Plaintiff's speed of processing and nonverbal ...

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