1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JACQUELINE C., ex rel. J.L., a minor, Case No.: 24-cv-1032-RBM-KSC
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION 14 FRANK BISIGNANO, Commissioner of Social Security, 15 Defendant. 16
17 Plaintiff filed this action challenging the final decision of the Commissioner of 18 Social Security denying plaintiff’s claim for benefits. Doc. Nos. 1, 17. This Court directed 19 the parties to explore informal resolution of the matter through the meet-and-confer 20 process, but the parties were unable to resolve the case on their own. Doc. Nos. 13, 18. 21 Having reviewed the parties’ briefing and the Administrative Record (“AR”), the Court 22 recommends the decision of the Commissioner in this matter be vacated and the matter 23 remanded for further proceedings as stated in this Report and Recommendation. 24
28 1 I. BACKGROUND 2 Plaintiff applied for Supplemental Security Income benefits on March 5, 2021. 3 AR 64, 187-88.1 The Social Security Administration denied the claim on October 6, 2021. 4 AR 95-98. The Administration denied plaintiff’s claim upon rehearing on March 28, 2022. 5 AR 105-09. On October 14, 2022, plaintiff requested a hearing before an Administrative 6 Law Judge (“ALJ”). AR 111. Plaintiff, represented by counsel and with plaintiff’s mother 7 acting on plaintiff’s behalf, appeared before the ALJ on May 5, 2023. AR 17. Plaintiff’s 8 attorney and the ALJ both examined plaintiff’s mother at the hearing. AR 37-62. After 9 reviewing the documentary evidence in the record and hearing testimony, the ALJ 10 ultimately concluded plaintiff was not disabled in a decision dated August 10, 2023. AR 11 17-30. 12 The ALJ’s decision followed the three steps prescribed by applicable regulations 13 under which the ALJ must sequentially determine (1) if the claimant is engaged in 14 substantial gainful activity; (2) whether the claimant suffers from a “severe” impairment 15 or combination of impairments; and (3) if the claimant’s impairment or combination of 16 impairments meets, medically equals, or functionally equals one of the impairments 17 identified in the regulatory Listing of Impairments. See 20 C.F.R. § 416.924; AR 17-18. A 18 finding of “yes” at step one or “no” at step two or three means a claimant is not disabled. 19 Id. However, a claimant is presumed disabled if all three steps of the sequential evaluation 20 process are satisfied. Id. 21 At step one, the ALJ found plaintiff, a “school-age child,” had not engaged in 22 substantial gainful activity. AR 18.2 At step two, the ALJ found plaintiff had “the following 23
24 25 1 The Court adopts the parties’ citations to the certified record in this matter. All other citations reflect pagination assigned by the Court’s CM/ECF case management system. For 26 clarity, the Court uses the term “plaintiff” to refer to the minor child who applied for 27 benefits, even though the instant case was brought by the child’s mother as a natural guardian. 28 2 1 severe impairments: attention deficit hyperactivity disorder (ADHD); and oppositional 2 defiance disorder (ODD).” Id. At step three, the ALJ found plaintiff’s impairments did not 3 meet, medically equal, or functionally equal any of the Listings. AR 18, 20. 4 In determining plaintiff did not have an impairment or combination of impairments 5 that met, medically equaled, or functionally equaled the severity of one of the Listings, the 6 ALJ considered Listings 112.08 (personality and impulse-control disorders) and 112.11 7 (neurodevelopmental disorders). AR 18. The ALJ ultimately determined plaintiff did not 8 meet the “Paragraph B requirements” for either Listing, as plaintiff did not have at least 9 one extreme limitation or two marked limitations. Id. Specifically, the ALJ determined 10 plaintiff had (1) a “mild” limitation in the Paragraph B criterion for “understanding, 11 remembering, or applying information;” (2) a “moderate” limitation in the Paragraph B 12 criterion for “interacting with others;” (3) a “mild” limitation in the Paragraph B criterion 13 for “concentrating, persisting, or maintaining pace;” and (4) a “marked” limitation in the 14 Paragraph B criterion for “adapting or managing oneself.” AR 19–20. 15 In determining plaintiff did not have an impairment or combination of impairments 16 that functionally equaled the severity of one of the Listings, the ALJ ultimately determined 17 plaintiff did not have at least one “extreme” limitation or two “marked limitations” in the 18 relevant functional domains. AR 21. Specifically, the ALJ determined plaintiff had (1) a 19 “less than marked” limitation in the functional domain for “acquiring and using 20 information;” (2) a “less than marked” limitation in the functional domain for “attending 21 and completing tasks;” (3) a “marked” limitation in the functional domain for “interacting 22 and relating with others;” (4) no limitation in the functional domain for “moving about and 23 manipulating objects;” (5) a “less than marked” limitation in the functional domain for 24 “caring for oneself; and (6) no limitation in the functional domain for “health and physical 25 well-being.” AR 21–30. Thus, in a decision dated August 10, 2023, the ALJ concluded 26 plaintiff was not disabled. AR 30. The Appeals Council affirmed the ALJ’s decision on 27 April 9, 2024. AR 1-3. This appeal followed. Doc. No. 1. 28 //// 1 II. STANDARD OF REVIEW 2 This Court will affirm the ALJ’s decision if (1) the ALJ applied the correct legal 3 standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm’r 4 of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial 5 evidence standard, the Commissioner's findings are upheld if supported by inferences 6 reasonably drawn from the record, and if there is evidence in the record to support more 7 than one rational interpretation, the Court will defer to the Commissioner. Id. 8 Even if the ALJ makes an error, this Court can nonetheless affirm the denial of 9 benefits if such error was “harmless, meaning it was ‘inconsequential to the ultimate 10 nondisability determination.’” Ford v Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting 11 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). The Court’s ability to uphold 12 the ALJ’s decision is limited in that this Court may not make independent findings and 13 therefore cannot uphold the decision on a ground not asserted by the ALJ. See Stout v. 14 Comm’r of the Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). 15 III. ANALYSIS OF THE COMMISSIONER’S DECISION 16 Plaintiff identifies two issues for this Court’s review. First, plaintiff contends the 17 ALJ erroneously concluded plaintiff’s impairments did not satisfy the paragraph B criteria 18 for the relevant Listings. Doc. No. 21 at 7-8. Second, plaintiff contends the ALJ 19 erroneously concluded plaintiff’s impairments did not functionally equal the relevant 20 Listings. Id. at 20-21. The Court will address each issue in turn. 21 (A) Whether the ALJ Properly Evaluated the Paragraph B Criteria of the 22 Relevant Listings 23 The ALJ considered whether plaintiff’s impairments met or medically equaled the 24 severity of Listing 112.08 and Listing 112.11. AR 18. Both Listings require a benefits 25 claimant to satisfy both the paragraph A and paragraph B criteria, with paragraph A criteria 26 generally supplying the relevant medically determinable symptoms of a mental impairment 27 while the paragraph B criteria set out the standards for the degree to which those 28 impairments limit the claimant’s ability to function. See generally 20 C.F.R. pt. 404, app. 1 1, § 112.00(A)(2). Here, the ALJ did not consider whether plaintiff met the paragraph A 2 criteria for both Listings. AR 18-19. The ALJ only concluded the paragraph B criteria had 3 not been met. Id. The ALJ considered both Listings together, which is appropriate because 4 both Listings use the same paragraph B criteria. See AR 18; 20 C.F.R. pt. 404, app. 1, 5 §§ 112.08(B), 112.11(B). 6 To meet the paragraph B criteria for either Listing, a claimant must have an 7 “extreme” limitation in one or a “marked” limitation in two of the following “areas of 8 mental functioning”: 9 1. Understand, remember, or apply information. 10 2. Interact with others. 11 3. Concentrate, persist, or maintain pace. 12 4. Adapt or manage oneself. 13 See 20 C.F.R. pt. 404, app. 1, §§ 112.08(B), 112.11(B).3 Plaintiff challenges the ALJ’s 14 conclusions as to the criteria of “[i]nteract with others” and “[c]oncentrate, persist, or 15 maintain pace.” Doc. No. 21 at 8. Because plaintiff had a “marked” limited in “adapting or 16 managing oneself” (see AR 20), an erroneous calculation of any one of the three other 17 criteria could prove dispositive of this case. Thus, the Court will consider whether the ALJ 18 properly applied the two paragraph B criteria at issue. 19 (1) Whether the ALJ Properly Evaluated Plaintiff’s Ability to Interact with 20 Others Under the Paragraph B Criteria 21 The Regulations describe the “interact with others” criterion as follows: 22 This area of mental functioning refers to the abilities to relate to others age- appropriately at home, at school, and in the community. Examples include: 23 Engaging in interactive play; cooperating with others; asking for help when 24 needed; initiating and maintaining friendships; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding 25 and responding to social cues (physical, verbal, emotional); responding to 26
27 3 The Regulations provide more comprehensive definitions of each of these paragraph 28 1 requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, 2 argumentativeness, or suspiciousness. These examples illustrate the nature of 3 this area of mental functioning. We do not require documentation of all of the examples. How you manifest this area of mental functioning and your 4 limitations in using it depends, in part, on your age. 5 See 20 C.F.R. pt. 404, sub. pt. P, app. 1, § 112.00(E)(2). The ALJ concluded plaintiff had 6 a “moderate” limitation in this area. AR 19. Plaintiff claims the ALJ’s conclusion is 7 erroneous because the ALJ “mischaracterized the evidence, failed to consider the record as 8 a whole, and erroneously stated that J.L. improved with medication,” all of which cannot 9 be reconciled with the later finding of a “marked” limitation in the “domain of ‘interacting 10 and relating with others’” because of the “broad overlap” with the paragraph B criteria and 11 the relevant domain. Doc. No. 21 at 8-10. 12 Although a claimant’s treatment records may be probative of whether the claimant 13 is disabled, an ALJ must indeed consider the record as a whole when making a disability 14 determination based at least partly on the claimant’s treatment history. See Holohan v. 15 Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). Although the ALJ is not required to 16 laundry-list every piece of evidence in the record, the ALJ must address “significant 17 probative evidence” when making a disability determination. Kilpatrick v. Kijakazi, 35 18 F.4th 1187, 1193 (9th Cir. 2022). The ALJ may not “cherry pick” evidence to deny benefits 19 while ignoring evidence of disability. Attmore v. Colvin, 827 F.3d 872, 877-78 (9th Cir. 20 2016). 21 The ALJ’s decision in this case directly cited only two pages of documentary 22 evidence to support his conclusion: an April 2022 report from plaintiff’s teacher that 23 addresses plaintiff’s ability to participate in school activities with and without the benefits 24 of his ADHD medications. AR 19 (citing AR 566-67). The ALJ also cited plaintiff’s 25 mother’s testimony during the hearing, claiming she “testified [plaintiff] participates in 26 class, and cooperates more than he did in prior years,” and she “reported [plaintiff] has not 27 28 1 destroyed any school property” while he “has been more consistent in taking his ADHD 2 medications, which has improved his behavior inside and outside of the school setting.” Id. 3 The ALJ construed this evidence too narowly. The teacher questionnaire, for one, 4 was more detailed than the ALJ’s quotation would suggest. Plaintiff’s teacher noted an 5 “[e]xcessive amount of tardies due to medication refusal.” AR 565. Plaintiff’s “extreme 6 behaviors” and “defiance” had “impacted” his ability to participate in school and achieve 7 academically. AR 567. Plaintiff had a range of “problems,” from “slight” to “serious” in 8 his abilities to interact with others, the management of which was “dependent on use of 9 medication.” AR 568. As for plaintiff’s medical conditions, the questionnaire noted 10 plaintiff “often refuses to take” his ADHD medication. AR 571. The substance of the 11 teacher questionnaire is, therefore, more nuanced than simply showing plaintiff improved 12 on medication, and the ALJ cherry-picked only the favorable portions of the questionnaire. 13 Similarly, plaintiff’s mother provided a much wider range of testimony than the ALJ 14 relayed. At the hearing, she testified how plaintiff, when he is at home, seeks “attention 15 [from his siblings] over and over to the point that he creates conflicts” and plaintiff’s 16 mother “has to step in.” AR 41. At the time of the hearing, plaintiff had been doing “better” 17 in school because he was no longer “destroying school property or classroom property, and 18 he is focused, he is seated” when he is in his classes (with the exception of when he has 19 writing assignments, with which he struggles). Id. Plaintiff is often tardy for school because 20 he does not like taking his ADHD medication, so his mother must wait until he calms down 21 before she can get him to take his medication, otherwise he will yell at her and fight with 22 her. AR 43. Even with his medication, plaintiff does not like to wake up and go to school. 23 AR 43-44. With his medication, plaintiff has been able to remain in the classroom more 24 because his urge to destroy property is tempered. AR 44. Plaintiff has run away from his 25 school campus when his medication wasn’t adequate. Id. On top of his ADHD, plaintiff 26 also has Oppositional Defiant Disorder (“ODD”), which, despite being somewhat tempered 27 by his currently more stable moods, as recently as the day before the hearing with the ALJ, 28 1 causes plaintiff to have outbursts where he loses his ability to control himself and he can 2 become violent. AR 47-48. 3 Plaintiff’s ODD-related episodes can lead to him saying he wishes he was never 4 born, or that he did not exist. AR 51. He will claim nobody loves him. Id. During one 5 episode, he ran away from a doctor’s office. Id. He has kicked and hit windows and walls, 6 as well as slammed the car door and thrown things at his mother in the car. Id. Although 7 his classroom performance has improved academically, plaintiff is still having “peer 8 trouble” at school. AR 53. He hits and kicks other children, and he takes toys away from 9 them. AR 53-54. Plaintiff’s “outburst” can be as numerous as four per day between school 10 and bedtime, and five or six per day on a weekend. AR 58. Plaintiff struggles in the 11 mornings, sometimes refusing to get out of bed and get ready for school, which leads to 12 conflict with his mother. AR 58-59. 13 Viewed in its full context – let alone in light of the record as a whole – the ALJ’s 14 characterization of the evidence he cited was overly myopic. Although plaintiff has 15 experienced some improvements in his ADHD symptoms, the ALJ’s analysis does not 16 sufficiently account for plaintiff’s issues with interpersonal relationships that are related to 17 his ODD, at least as presented in the evidence relied on by the ALJ. Thus, because it was 18 not considered in its full context, the evidence relied on by the ALJ was not substantial 19 evidence to support his finding of a moderate impairment in plaintiff’s ability to interact 20 with others. Moreover, plaintiff cites a body of evidence not expressly considered by the 21 ALJ. See generally Doc. No. 21 at 12-16. That evidence includes the following: 22 • May 22, 2020, intake notes from Family Health Centers of San Diego that 23 indicate plaintiff places peers and teachers in danger by engaging in unsafe 24 behavior. AR 458. 25 • July 14, 2020, therapist’s notes observing plaintiff threw an item at his mother. 26 AR 453. 27 • A Family Health Centers of San Diego occupational therapy treatment note 28 from March 2021 indicated plaintiff’s hyperactivity was better controlled; but 1 his frustration and anger were worse, such that he “has been punching the 2 walls and furniture.” AR 313. 3 • A May 10, 2021, assessment report from San Diego Unified School District 4 noting when plaintiff is “in an environment where his needs aren’t 5 immediately heard and addressed or things don’t go according to plan,” which 6 can cause plaintiff to “quickly escalate” into behavior that can be “harmful” 7 to others. AR 1095. 8 • A November 10, 2021, report from Family Health Centers of San Diego where 9 plaintiff described another child at school as an “enemy” and reported getting 10 in a fight with the “enemy.” AR 481. 11 • In December 2021, plaintiff told a provider at San Diego Regional Center he 12 was often “teased” by peers at school and siblings at home. AR 702. 13 • In December 2021, plaintiff reported he had difficulty understanding other’s 14 emotions. AR 894. 15 • A County Mental Health Services “client plan” dated December 2021 notes 16 plaintiff has a history of inappropriately touching other students at school, and 17 he cannot distinguish other people’s emotions. AR 899. 18 • Nurse practitioner Virginia Meltzer’s January 7, 2022, notes showing plaintiff 19 is having difficulty at school because other children do not want to play with 20 him, and plaintiff had at least one violent episode within the past several 21 months at his school. AR 975-76. 22 • During a January 2022 therapy session, the therapist noted plaintiff’s 23 “difficulty following directives and understanding boundaries.” AR 714. 24 • A January 2022 therapist’s note identifying how plaintiff’s “difficulty 25 understanding boundaries” impairs plaintiff’s social functions. AR 716. 26 • In February 2022, plaintiff’s mother reported to Mid City Community Clinic 27 “worsening symptoms of impulsivity” and violent behavior at school, which 28 had led to psychiatric hospitalization. AR 971. 1 • A February 22, 2022, individual progress note detailing worsening behaviors 2 overall for plaintiff, including struggles to interact with teachers and peers at 3 school because plaintiff is ostracized by his peers. AR 724. 4 • Dr. Aaron Zaheer’s notes from February 23, 2022, which describe “worsening 5 symptoms of impulsivity [and] anger” that lead to plaintiff destroying 6 property at school. AR 971. 7 • Treatment records from San Diego Regional Center dated March 2022 8 included mother’s reports of plaintiff’s assaults on peers and destructive 9 behaviors at school, trying to punch a school counselor, “sexualized” 10 behaviors, increased difficulty with peers since taking a stronger ADHD 11 medication, and difficulty understanding other people’s emotions. AR 726- 12 27. 13 • Progress notes from March 10, 2022, show plaintiff often fights with his 14 brother at home. AR 729-30. 15 • Progress notes from March 30, 2022, in which plaintiff reports he becomes 16 “outraged when people say mean things to him and when people don’t play 17 with him.” AR 733. 18 • Progress notes from July 6, 2022, show an impaired ability to make new 19 friends. AR 769. 20 • At a March 2023 exam, APRN Kirsten Snyder described plaintiff’s attitude 21 as “uncooperative, defiant,” and “guarded” while noting reports of increased 22 frustration and defiant behavior correlated with better control over plaintiff’s 23 hyperactivity symptoms through increased ADHD medication. AR 949-51. 24 • An April 2023 version of client’s Individualized Education Plan (“IEP”) 25 noted, notwithstanding progress as compared to the year before, “recent 26 instances” of “kicking or hitting” a peer. AR 1234. 27 • Plaintiff has a well-documented history of rigidity in his interactions with 28 others, particularly authority figures (often described as difficulty 1 understanding and respecting boundaries), and he resists any departures from 2 his own plans or ideas about how things should go. See, e.g., AR 1095 (March 3 10, 2021); 899 (December 1, 2021), 714 (January 19, 2022), 716 (January 27, 4 2022), 720 (February 11, 2022), 722 (February 17, 2022), 734 (March 2, 5 2022), 682-83 (August 16, 2022). 6 All of this evidence is relevant to the paragraph B criterion of interacting with others, 7 but the ALJ’s analysis does not take this evidence into account. This is not a simple case, 8 as defendant contends, of plaintiff’s condition being well managed by medication. See Doc. 9 No. 25 at 4 (citing Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006)). A 10 fulsome analysis in which the ALJ analyzed the whole record could conceivably conclude 11 plaintiff’s condition was appropriately managed. But to get to that point the ALJ must 12 actually consider the evidence, rather than ignore significant probative evidence and 13 cherry-pick from the record as happened here.4 14 The ALJ appears to have incorporated-by-reference some of his other analysis from 15 step three. See AR 19 (basing a “moderate” finding partly on “the evidence discussed below 16 in connection with Domain 3”). In an appropriate case, a Court might be able to 17 meaningfully review the ALJ’s decision if it relied on such incorporation by reference of a 18 factual analysis elsewhere in the decision. But this is not such a case. As plaintiff notes, 19 there is indeed “broad overlap” between the paragraph B criterion at issue and Domain 3. 20 See Doc. No. 21 at 9. The applicable Regulations provide a test for when an impairment 21 (or combination of impairments) is “functionally equal” to the listings when presented by 22 minor claimants. See 20 C.F.R. § 416.926a(a). Like the Listings, the functional equivalence 23 test is met if an ALJ finds a “marked” limitation in two “domains of functioning.” Id. The 24
25 4 The ALJ’s error at this step was not harmless because a finding of “marked” 26 limitation could make plaintiff disabled. The Court considers remand the appropriate 27 remedy for this error because it is for the ALJ to evaluate the evidence properly in the first instance. The ALJ must also make a finding vis-à-vis the paragraph A criteria, if necessary, 28 1 ALJ in this case found a “marked” limitation in the domain of “interacting and relating 2 with others.” AR 21. The ALJ assesses impairment in that domain by considering how well 3 the plaintiff can “initiate and sustain emotional connections with others, develop and use 4 the language of [plaintiff’s] community, cooperate with others, comply with rules, respond 5 to criticism, and respect and take care of the possessions of others.” 20 C.F.R. 6 § 416.926a(i). The similarities between this standard and the paragraph B criterion far 7 outnumber any differences. 8 Plaintiff does not contend they are always coterminous, but the “broad overlap” 9 between the paragraph B criteria and the analogous domain makes it problematic for the 10 ALJ to have found a moderate limitation in one of the paragraph B criteria by referencing 11 his analysis of a very similar domain in which he found a marked limitation. Given the 12 overarching similarities, the ALJ had to at least explain why the same evidence led to 13 different legal conclusions, paying close attention to any distinctions between the 14 paragraph B criteria and the closely analogous domain(s). Given the record in this case 15 contains ample evidence that could support a “marked” limitation in the paragraph B 16 criteria of “interacting with others,” the ALJ needed to show his work in more detail to 17 resolve inconsistencies between the paragraph B criteria and the functional equivalence 18 analysis. The failure to do so renders the decision unsupported by substantial evidence. On 19 remand, the ALJ shall reconsider the paragraph B criteria without engaging in any cherry 20 picking. The ALJ shall also provide a sufficient analysis of any disparate findings between 21 the paragraph B criteria and related domains. 22 (2) Whether the ALJ Properly Evaluated Plaintiff’s Ability to Concentrate, 23 Persist, or Maintain Pace Under the Paragraph B Criteria 24 The Regulations describe the “concentrate, persist or maintain pace” criterion as 25 follows: 26 This area of mental functioning refers to the abilities to focus attention on activities and stay on task age-appropriately. Examples include: Initiating and 27 performing an activity that you understand and know how to do; engaging in 28 an activity at home or in school at an appropriate and consistent pace; 1 completing tasks in a timely manner; ignoring or avoiding distractions while engaged in an activity or task; changing activities without being disruptive; 2 engaging in an activity or task close to or with others without interrupting or 3 distracting them; sustaining an ordinary routine and regular attendance at school; and engaging in activities at home, school, or in the community 4 without needing an unusual amount of rest. These examples illustrate the 5 nature of this area of mental functioning. We do not require documentation of all of the examples. How you manifest this area of mental functioning and 6 your limitations in using it depends, in part, on your age. 7 See 20 C.F.R. pt. 404, sub. pt. P, app. 1, § 112.00(E)(3). The ALJ found plaintiff had a mild 8 limitation with regard to concentrating, persisting, or maintaining pace. AR 19. Plaintiff 9 argues this finding was erroneous because the ALJ cherry-picked from the record rather 10 than considering the record as a whole. Doc. No. 21 at 18. 11 Defendant (erroneously stating plaintiff did not challenge the ALJ’s finding vis-à- 12 vis the paragraph B3 criterion at issue) offers no defense of the ALJ’s finding. Doc. No. 25 13 at 4. As many courts have noted, the failure to address an issue raised in the opening papers 14 may be treated as a concession of the issue. See Reyes v. Wells Fargo Bank, N.A., ___ F. 15 Supp. 3d ___, 2017 WL 11568871, 2017 U.S. Dist. LEXIS 198129, at *11-12 (C.D. Cal. 16 2017) (collecting cases). The Court concludes defendant’s failure to offer any argument 17 rebutting plaintiff’s contentions operates as a de facto concession those contentions have 18 merit. Accordingly, the Court concludes the ALJ’s analysis of the paragraph B3 criterion 19 of concentrating, persisting, and maintain pace was not supported by substantial evidence 20 and the matter must be remanded. 21 Although the waiver doctrine provides the Court an independently sufficient grounds 22 for remanding this matter, the Court will nonetheless address the merits of plaintiff’s 23 arguments out of an abundance of caution (because the law disfavors forfeiture) and to 24 provide guidance for the ALJ and the parties on remand. 25 The ALJ relied almost entirely on an August 25, 2021, psychological evaluation. See 26 AR 19 (citing AR 466-73). That evaluation, in turn, comprised mostly assessments of 27 plaintiff’s raw cognitive abilities based on intelligence quotient (IQ) scores and 28 1 math/language ability. AR 466-73. The ALJ also relied on plaintiff’s mother’s estimate, 2 made on the disability function report, that plaintiff could pay attention for 1-2 minutes 3 without his ADHD medication, but he could pay attention for 5-10 minutes with his 4 medication. AR 19 (citing AR 235). The gravamen of this area of mental functioning 5 concerns “the abilities to focus attention on activities and stay on task age-appropriately.” 6 See 20 C.F.R. pt. 404, sub. pt. P, app. 1, § 112.00(E)(3). Plaintiff’s cognitive abilities are 7 not per se probative of this because plaintiff could be above average in his raw cognitive 8 ability yet at the same time struggle to stay focused. To wit, being smart and having ADHD 9 are not mutually exclusive conditions. The ALJ’s reliance on plaintiff’s cognitive 10 functioning did not, therefore, adequately address the more specific inquiry at issue, which 11 looks at how well plaintiff can stay on task, regardless of his raw cognitive abilities. 12 Similarly, even if plaintiff’s mother’s assessment of plaintiff’s ability to stay on task was 13 the only piece of evidence in the record, the ALJ’s analysis does not account for whether 14 “5-10 minutes” of concentration ability (without mentioning what plaintiff is concentrating 15 on) is age-appropriate for the plaintiff’s ability to stay on task, which is the level of analysis 16 the regulations demand. The ALJ’s analysis was, therefore, too conclusory to have the 17 support of substantial evidence. 18 As with the ability to interact with others, the ALJ attempted to incorporate by 19 reference other portions of his analysis. AR 20. The ALJ’s findings as to this paragraph B 20 criterion and Domain 2 at step three were at least consistent in that they were both “mild.” 21 Compare AR 19-20 with AR 22-23. However, this consistency does not redeem the ALJ’s 22 analysis because both portions of the decision relied on the same evidence to support a 23 substantively identical conclusion. Id. The Domain 2 analysis did not add anything of 24 substance to the equation, it merely repeated the earlier conclusion on the same basis. The 25 ALJ’s analysis was, therefore, still inadequate whether he repeated it once or twice. 26 Moreover, as plaintiff points out, the record is rife with evidence that plaintiff’s 27 ability to concentrate and remain on task is severely impacted by his ADHD. For example, 28 the ability to change tasks without being disruptive is legally material to this area of mental 1 functioning. See 20 C.F.R. pt. 404, sub. pt. P, app. 1, § 112.00(E)(3). There is evidence in 2 the record that shows plaintiff has serious difficulties transitioning between tasks. See, e.g., 3 AR 714, 722. Some of this evidence, which post-dates the psychological evaluation the 4 ALJ found so persuasive, comes directly from plaintiff’s school, an arena in which he must 5 function on a daily basis. See, e.g., AR 724 (describing “difficulty self-regulating when 6 asked to engage in a non-preferred task”); see also AR 1094 (describing plaintiff’s violent 7 outburst triggered by an inability to transition from a “preferred activity”). The ALJ also 8 appears to have overlooked the effect plaintiff’s ADHD has on others, which is explicitly 9 listed in the paragraph B criterion at issue. For example, plaintiff’s IEPs note a strong 10 tendency to distract other students. See, e.g., AR 588; see also AR 727 (noting plaintiff’s 11 history of blocking peers from leaving the classroom). The ALJ’s analysis fails to consider 12 these material aspects of the area of mental functioning at issue.5 Rather, the Court 13 concludes the ALJ isolated a specific quantum of evidence that could support a finding of 14 “mild” limitation while ignoring the remainder of the record, which includes evidence that 15 might in fact prove plaintiff is disabled. On remand, the ALJ must reconsider the evidence 16 contained in the whole record and evaluate it under the controlling regulations. 17 (B) Whether the ALJ Properly Evaluated the Functional Equivalence of 18 Plaintiff’s Impairments to the Relevant Listings 19 At step three of the sequential evaluation process for child applicants, if a child 20 applicant does not meet any Listing, the ALJ evaluates the impact of the claimant’s 21
22 23 5 The Court has not identified all the evidence that might be material to assessing this area of mental functioning. The Court’s analysis has been limited only to showing the ALJ 24 failed to account for some evidence that is doubtlessly material. The briefing in this case 25 is disorderly and only marginally helpful, and the ALJ’s decision is often inscrutable, both of which negatively impact the Court’s ability to review the record. In any event, assessing 26 the entire record as a whole is the ALJ’s job in the first instance, and the ALJ’s analysis on 27 remand should go further than the Court’s has gone here. It suffices, for purposes of the Court’s review, to show the ALJ ignored “significant probative evidence,” which warrants 28 1 impairments on five “domains” of functioning to determine whether the impairments are 2 “functionally equivalent” to one of the listed impairments. See generally 20 C.F.R. 3 § 416.926a. The Administration refers to this part of step three as the “‘whole child’ 4 approach” to determining disability because it “accounts for all of the effects of a child's 5 impairments singly and in combination.” See SSR 09-1p, 2009 WL 396031, 2009 SSR 6 LEXIS 1, at *14. 7 Plaintiff claims error in only one of the ALJ’s functional domain assessments: the 8 finding that plaintiff had a less than marked limitation in Domain 5, his ability to care for 9 himself. Doc. No. 21 at 21-22; accord Doc. No. 25 at 6 n.4. Plaintiff argues the ALJ’s 10 conclusion was generally not supported by substantial evidence, particularly because the 11 ALJ failed to articulate how plaintiff could have a “marked” limitation in the paragraph B 12 criterion of “adapt or manage oneself” and a less than marked limitation in Domain 5 given 13 the “broad overlap” between Domain 5 and the analogous paragraph B criterion. 14 For child disability applicants, the paragraph B criterion of “adapt or manage 15 oneself” refers 16 to the abilities to regulate emotions, control behavior, and maintain well-being in age-appropriate activities and settings. Examples include: Responding to 17 demands; adapting to changes; managing your psychologically based 18 symptoms; distinguishing between acceptable and unacceptable performance in community- or school-related activities; setting goals; making plans 19 independently of others; maintaining personal hygiene; and protecting 20 yourself from harm and exploitation by others. These examples illustrate the nature of this area of mental functioning. We do not require documentation of 21 all of the examples. How you manifest this area of mental functioning and 22 your limitations in using it depends, in part, on your age.
24 See 20 C.F.R. pt. 404, sub. pt. P, app. 1, § 112.00(E)(4). Domain 5, which is described 25 elsewhere in the Code of Federal Regulations, refers to 26 how well you maintain a healthy emotional and physical state, including how well you get your physical and emotional wants and needs met in appropriate 27 ways; how you cope with stress and changes in your environment; and 28 whether you take care of your own health, possessions, and living area. 1 See 20 C.F.R. § 416.926a(k). The Regulations provide further guidance for applying that 2 standard to “school-age children” like plaintiff who 3 should be independent in most day-to-day activities (e.g., dressing yourself, bathing yourself), although you may still need to be reminded sometimes to 4 do these routinely. You should begin to recognize that you are competent in 5 doing some activities and that you have difficulty with others. You should be able to identify those circumstances when you feel good about yourself and 6 when you feel bad. You should begin to develop understanding of what is 7 right and wrong, and what is acceptable and unacceptable behavior. You should begin to demonstrate consistent control over your behavior, and you 8 should be able to avoid behaviors that are unsafe or otherwise not good for 9 you. You should begin to imitate more of the behavior of adults you know.
11 See 20 C.F.R. § 416.926a(k)(2)(iv). Based on a comparison of the two regulations, the 12 paragraph B criterion at issue and Domain 5 both address how plaintiff’s impairments (in 13 this case, psychological impairments) affect his ability not only to take care of himself in 14 the sense of managing his personal hygiene, but also how to care for himself socially by 15 engaging in positive behaviors that maximize the health and safety of himself and others. 16 The Court agrees with plaintiff there is a “broad overlap” between the two standards. In 17 fact, they appear to be virtually indistinguishable from each other as a matter of substance. 18 Although it may be possible to have different findings at different steps, as the Court has 19 already noted, an ALJ must carefully analyze how the evidence fits one standard and does 20 not fit the other. This is particularly true where, as here, the ALJ relied on the same 21 evidence yet reached markedly different conclusions. 22 The ALJ’s analysis here is further suspect on the merits because it appears the ALJ 23 did not consider significant probative evidence related to Domain 5. For example, SSR 09- 24 1p provides a particularly salient example of how ADHD, which is at issue in this case, 25 might be rated in Domain 5 where it describes a child who “often impulsively dashes out 26 into the street without looking for cars and considering his safety. Being responsible for 27 his own safety requires the child to stop moving and to be cautious before stepping into the 28 street. These difficulties in self-related activities indicate a limitation in the domain of 1 ‘Caring for yourself.’” See 2009 WL 396031, 2009 SSR LEXIS 1, at *14. There is evidence 2 showing plaintiff causes injury to himself and others. AR 458, 1095. In one instance, when 3 left unsupervised, plaintiff tried to start a fire, then threw burning cardboard into his closet. 4 AR 45. At home, he will try to climb fences and escape from his yard. AR 727. There is 5 also evidence showing plaintiff has a history of running away from his school. See, e.g., 6 AR 44l see also AR 588 (April 20, 2022, IEP noting “daily” elopement from school); AR 7 1238 (April 10, 2023, IEP noting plaintiff attempts to climb over fences to leave the school 8 campus). In at least one instance, he ran away from a doctor’s appointment into a parking 9 lot. AR 51. 10 The ALJ’s analysis focused extensively on plaintiff’s ability to see to his personal 11 hygiene—things like brushing teeth and getting dressed. See AR 25, 29. But, as the 12 Regulations make clear, Domain 5 is about more than just the ability to keep oneself clean. 13 Plaintiff might have a marked limitation if, even though he can brush his teeth and put on 14 his clothes, he is unable to stay out of serious danger because of his impairments. The 15 ALJ’s failure to consider significant probative evidence within Domain 5 leads the Court 16 to once again conclude the ALJ cherry-picked the evidence, so the decision is not supported 17 by substantial evidence. On remand, the ALJ shall reconsider plaintiff’s rating in Domain 18 5, taking into account all aspects of the regulatory standard for which there is significant 19 probative evidence in the record. 20 //// 21 //// 22 //// 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 IV. CONCLUSION 2 The final decision of the Commissioner is not supported by substantial evidence. 3 || The Court recommends the District Judge enter an order (1) vacating the final decision of 4 ||the Commissioner; (2) remanding with instructions to reevaluate the evidence of record; 5 || and (3) directing the Clerk of Court to prepare and enter a separate judgment for plaintiff 6 against defendant. 7 Dated: June 10, 2025 AA ™
9 Hori. Karen 8S. Crawford United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28