1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 May 11, 2021
3 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 4 AIDE H., on behalf of J.H., a minor No. 1:20-cv-03101-SMJ 5 child, ORDER GRANTING PLAINTIFF’S 6 Plaintiff, MOTION FOR SUMMARY JUDGMENT AND DENYING 7 v. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 8 ANDREW SAUL, Commissioner of Social Security, 9 Defendant. 10
11 Plaintiff Aide H., on behalf of minor child J.H., appeals the Administrative 12 Law Judge’s (ALJ) denial of J.H.’s application for Supplemental Security Income 13 (SSI) benefits. She alleges that the ALJ erred by (1) not obtaining a case evaluation 14 from an appropriate specialist based on the record in its entirety; (2) improperly 15 rejecting J.H.’s testimony; (3) improperly assessing the Listings and Domains; and 16 (4) improperly evaluation the opinion evidence. ECF No. 14 at 2. Defendant 17 disputes these contentions and asks the Court to affirm the ALJ’s determination. 18 ECF No. 15. 19 Before the Court, without oral argument, are the parties’ cross-motions for 20 summary judgment. ECF Nos. 14, 15. After reviewing the administrative record, 1 the parties’ briefs, and the relevant legal authority, the Court is fully informed. For 2 the reasons discussed below, the Court remands to the Social Security
3 Administration for additional proceedings. 4 BACKGROUND1 5 Plaintiff applied for SSI benefits for J.H. in January 2017, alleging an onset
6 date of January 1, 2014. AR 221.2 ALJ Caroline Siderius held a hearing in April 7 2019. AR 42. In May 2019, the ALJ determined that J.H. was not disabled and 8 denied the application. The Appeals Council denied Plaintiff’s request for review. 9 AR 1. Plaintiff then appealed to this Court. ECF No. 1.
10 DISABILITY DETERMINATION 11 A “disability” is defined as the “inability to engage in any substantial gainful 12 activity by reason of any medically determinable physical or mental impairment
13 which can be expected to result in death or which has lasted or can be expected to 14 last for a continuous period of not less than twelve months.” 42 U.S.C. 15 §§ 423(d)(1)(A), 1382c(a)(3)(A). In evaluating an application for benefits for an 16 individual under eighteen years of age, the decision-maker uses a three-step
17 sequential evaluation process to determine whether the claimant is disabled. 20 18 1 The facts, thoroughly stated in the record and the parties’ briefs, are only briefly 19 summarized here. See ECF Nos. 11, 14, 15 & 16. 2 References to the administrative record (AR), ECF No. 11, are to the provided 20 page numbers to avoid confusion. 1 C.F.R. § 416.924(a). 2 Step one assesses whether the claimant is engaged in substantial gainful
3 activities. If he or she is, benefits are denied. 20 C.F.R. § 416.924(b). If the claimant 4 is not, the decision-maker proceeds to step two. 5 Step two assesses whether the claimant has a severe medically determinable
6 impairment or combination of impairments. 20 C.F.R. §416.924(c). An impairment 7 or combination of impairments is not severe if it is a slight abnormality or 8 combination of abnormalities that causes no more than minimal functional 9 limitations. Id. If the claimant does not have a severe medically determinable
10 impairment or combination of impairments, the disability claim is denied. Id. If the 11 claimant does, the evaluation proceeds to the third step. 12 Step three compares the claimant’s impairment with a number of listed
13 impairments acknowledged by the Commissioner to be so severe as to preclude 14 substantial gainful activity. 20 C.F.R. § 416.924(d). If the impairment meets or is 15 medically or functionally equal to one of the listed impairments and has lasted or is 16 expected to last for a period of at least twelve consecutive months, the claimant is
17 presumed to be disabled. Id. The ALJ’s assessment of whether an impairment is 18 functionally equal to a listed impairment is based on six “domains,” or “broad areas 19 of functioning intended to capture all of what a child can or cannot do.” 20 C.F.R.
20 § 416.926a(b)(1). The six domains are: 1 (i) Acquiring and using information; 2 (ii) Attending and completing tasks;
3 (iii) Interacting and relating with others; 4 (iv) Moving about and manipulating objects; 5 (v) Caring for yourself; and
6 (vi) Health and physical well-being. 7 Id. A child’s impairment is functionally equal to a listed impairment if it results in 8 a “marked” limitation in two domains or an “extreme” limitation in any one. Id. at 9 § 416.929a(a). A limitation is “marked” if it interferes “seriously” with “[the
10 child’s] ability to independently initiate, sustain, or complete activities.” Id. at 11 § 416.926a(e)(2)(i). A limitation is “extreme” when it interferes “very seriously” 12 with “[the child’s] ability to independently initiate, sustain, or complete activities.”
13 Id. at § 416.926a(e)(3)(i). 14 ALJ FINDINGS 15 At step one, the ALJ found J.H. had not engaged in substantial gainful 16 activity since January 20, 2017, the application date. AR 24.
17 At step two, the ALJ found that J.H. had childhood-onset fluency disorder, 18 which was severe medically determinable impairment. AR 24. She also determined 19 that he had anxiety disorder and depression, which were nonsevere impairments.
20 AR 24–25. 1 At step three, the ALJ found that J.H. did not have an impairment or 2 combination of impairments that met or medically equaled the severity of a listed
3 impairment. AR 25. Nor did he have an impairment or combination of impairments 4 that functionally equaled the severity of the listings. Id. The ALJ found that J.H. did 5 not have marked or extreme limitations in any of the six domains. AR 29–35.
6 STANDARD OF REVIEW 7 Reviewing courts must uphold an ALJ’s disability determination if it applied 8 the proper legal standards and supported its decision with substantial evidence in 9 the record. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by
10 regulation on other grounds. “Substantial evidence ‘means such relevant evidence 11 as a reasonable mind might accept as adequate to support a conclusion.’” Id. 12 (quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)).
13 “[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for such 14 evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 15 (2019). The ALJ must base its determination on “more than a mere scintilla” of 16 evidence, id. at 1154, but need not support its decision by a preponderance of the
17 evidence. Molina, 674 F.3d at 1111. If the evidence supports more than one rational 18 interpretation, and the ALJ has supported its decision with inferences drawn 19 reasonably from the record, the Court must uphold its decision. Id.; Allen v. Heckler,
20 749 F.2d 577, 579 (9th Cir. 1984). 1 Moreover, the Court will not reverse an ALJ’s decision if it committed 2 harmless error. Molina, 674 F.3d at 1111. The burden to show harmful error lies
3 with the party challenging the ALJ’s determination. See Shinseki v. Sanders, 556 4 U.S. 396, 409 (2009). 5 ANALYSIS
6 A. Case Evaluation from an Appropriate Specialist Based on the Record in 7 its Entirety
8 For a disability claim of an individual under eighteen years old, the ALJ 9 “shall make reasonable efforts to ensure that a qualified pediatrician or other 10 individual who specializes in a field of medicine appropriate to the disability of the 11 individual (as determined by the Commissioner of Social Security) evaluates the 12 case of such individual.” 42 U.S.C. § 1382c(a)(3)(I). The qualified pediatrician or 13 other appropriate specialist must base their evaluation on the record in its entirety. 14 Howard ex rel. Wikff v, Barnhart, 341 F.3d 1006, 1014 (9th Cir. 2003). The ALJ 15 cannot “construct[] [her] own case evaluation from the evidence in the record.” Id. 16 Plaintiff argues that the ALJ’s reliance on the opinion of Nancy Winfrey, PhD, did
17 not meet her obligations under Section 1382c.3 18 3 The Social Security Administration (“SSA”) released Acquiesce Ruling (“AR”) 19 04-1(9), which states that an ALJ may satisfy Section 1382c(a)(3)(I) by relying on either Medical Expert testimony or a State agency consultant in the record. The 20 record must include the qualifications of the State agency consultant and the ALJ 1 Dr. Winfrey is a clinical psychologist. AR 617. Plaintiff argues that child 2 psychology is not a “field of medicine appropriate to [J.H.’s alleged] disability,”
3 childhood-onset fluency disorder—namely, his stutter. See 42 U.S.C. § 4 1382c(a)(3)(I); ECF No. 14 at 5. She contends that the ALJ should have engaged a 5 speech therapist to evaluate J.H.’s case. Id. Defendant argues that the ALJ’s
6 determination centered on evaluating J.H.’s “mental functioning, including his 7 ability to acquire and use information, complete tasks, interact with others, and care 8 for himself.” ECF No. 15 at 3. Dr. Winfrey, Defendant asserts, is qualified to offer 9 an opinion regarding J.H.’s ability in those domains. Id. Defendant also points out
10 that “Dr. Winfrey testified that she had treated clients who were stutterers and that 11 she [] felt qualified to address that aspect of Plaintiff’s functioning.” Id. (citing AR 12 51); cf. Mendoza v. Comm’r of Soc. Sec., No. 4:16-CV-05151-EFS, 2018 U.S. Dist.
13 LEXIS 125005, at *9 (E.D. Wash. March 23, 2018) (finding a psychiatrist’s 14 testimony insufficient under Section 1382c(a)(3)(I) in a case involving a child born 15 without a left ear where the psychiatrist “repeatedly expressed that he was unable 16 to render an opinion as to most of the record” noting that “it would really take a
18 must explain how they considered their evaluation. AR 04-1(9). Here, Plaintiff argues that there is no evidence that the ALJ relied on the opinions of the State 19 agency consultants. See ECF No. 14 at 5 (citing AR 29, 32–33, 34, 71 & 82–83). Defendant does not appear to refute this contention. See generally ECF No. 15 at 20 2–4. 1 pediatrician or a speech pathologist”). This Court finds that the ALJ based her 2 determination that Dr. Winfrey was a qualified specialist in a field appropriate to
3 J.H.’s alleged disability on substantial evidence. 4 But the Court agrees with Plaintiff that the ALJ did not make “reasonable 5 efforts” to ensure Dr. Winfrey evaluated the record in its entirety. See 42 U.S.C. §
6 1382c(a)(3)(I). After the hearing, Plaintiff submitted additional evidence and 7 documentation. See AR 339–66; 620–35. This included J.H.’s September 2017 8 Stuttering Severity Instrucment-4 (SSI-4) score, which indicated that his stuttering 9 remained “very severe,” AR 622, his 2018 school records, which indicated he still
10 needed special education and accommodations, AR 339–47, and his treating 11 physician’s finding that J.H. remained markedly limited in completion of oral tasks 12 in April 2019, AR 635. As the record continued to grow, with new and relevant
13 evidence, the ALJ should have made efforts to receive an updated opinion from Dr. 14 Winfrey or another qualified specialist, whether through interrogatories or 15 otherwise. See Jensen v. Colvin, 2015 U.S. Dist. LEXIS 34627, at *21–23 (E.D. 16 Cal. Mar. 18, 2015). The ALJ’s error is especially significant because of her reliance
17 on J.H.’s supposed improvements. See AR 26. 18 B. Assessment of J.H’s testimony 19 When a claimant is not malingering and has provided objective medical
20 evidence which may reasonably produce the symptoms alleged, an ALJ may reject 1 that claimant’s symptom testimony “only by providing specific, clear, and 2 convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89
3 (9th Cir. 2015). The ALJ must “identify the testimony she found not credible” and 4 “link that testimony to the particular parts of the record supporting her non- 5 credibility determination.” Id. at 494. An ALJ must make sufficiently specific
6 findings “to permit the court to conclude that the ALJ did not arbitrarily discredit 7 [the] claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 8 2008) (citations omitted). General findings are insufficient. Lester v. Chater, 81 9 F.3d 821, 834 (9th Cir. 1995). “The clear and convincing standard is the most
10 demanding required in Social Security cases.” Moore v. Comm’r of the Soc. Sec. 11 Admin., 278 F.3d 920, 924 (9th Cir. 2002). 12 The ALJ discounted J.H.’s testimony as inconsistent because he has
13 “improved over time.” AR 26. Plaintiff argues this is insufficient to reject his 14 testimony, and that J.H.’s testimony is not inconsistent with the evidence, even the 15 evidence of any improvements. ECF No. 14 at 6–7. This Court agrees. 16 The effectiveness of treatment is relevant to the evaluation of a claimant’s
17 symptom testimony. 20 C.F.R. § 416.929(c)(3). But the mere fact that a person 18 “makes some improvement does not mean that the person’s impairments no longer 19 seriously affect” their functioning. See Holohan v. Massanari, 246 F.3d 1195, 1205
20 (9th Cir. 2001). The ALJ must consider any improvement “in context of the overall 1 diagnostic picture.” Id. J.H. testified that his stuttering had improved since he was 2 younger, but that his stuttering still affects him. AR 56–59. The ALJ failed to
3 explain how this testimony is inconsistent with the evidence. See AR 25–35. 4 The ALJ also emphasized that J.H.’s stutter affected him most severely when 5 he is anxious or around new people. AR 26–27. Plaintiff argues that this is
6 consistent with J.H.’s testimony and relevant to the ALJ’s analysis of the Listings 7 and Domains. ECF No. 14 at 8. For example, Domain 3 states that adolescents, like 8 J.H., should “intelligibly express [their] feelings, ask for assistance in getting needs 9 met, seek information, describe events, and tell stories, in all kinds of environments
10 (e.g., home, classroom, sports, extra-curricular activities, or part-time job), and with 11 all types of people (e.g., parents, siblings, friends, classmates, teachers, employers, 12 and strangers)” 20 C.F.R. § 416.926a(i)(2)(v).
13 The “whole child” approach requires the ALJ to 14 begin by considering how the child functions every day and in all settings compared to other children the same age who do not have 15 impairments. After [they] determine how the child functions in all settings, [they] use the domains to create a picture of how, and the 16 extent to which, the child is limited by identifying the abilities that are used to do each activity, and assigning each activity to any and all of 17 the domains involved in doing it. [They] then determine whether the child’s medically determinable impairment (s) accounts for the 18 limitations [they] have identified. Finally, [they] rate the overall severity of limitation in each domain to determine whether the child is 19 “disabled” as defined in the Act.
20 SSR 09-1p, 2009 SSR LEXIS 1, at *6 (March 19, 2009) (emphasis added). 1 Defendant responds that “[t]he mere fact that [J.H]’s stuttering was worse when he 2 was nervous or around strangers does not mean that he had a marked or extreme
3 limitation[] in any functional area.” ECF No. 15 at 14. Nor, Defendant contends, 4 does it mean that J.H. had a “serious limitation in communicating” which would 5 render him disabled. See 20 C.F.R. Part 404, Subpart P, App’x 1, § 111.09A (stating
6 under the listings, the ALJ needs evidence that a speech deficit causes a “serious 7 limitation in communicating, and a person who is unfamiliar with you cannot easily 8 understand or interpret your speech”). While the Court agrees that the “whole child” 9 approach does not require the ALJ to find J.H. disabled if he has limitations in any
10 activities, it does require the ALJ to consider his limitations in all contexts. See SSR 11 09-1p, 2009 SSR LEXIS 1, at *6. 12 Although Defendant points to several places in the record to show J.H.’s
13 improvements, the record as a whole appears to show only limited strides. For 14 example, a year before Plaintiff applied for disability benefits, in early 2016, J.H.’s 15 stuttering tested in the “very severe range.” AR 321. But at about the time of the 16 application date, early 2017, his individual education plan (IEP) noted only “mild
17 stuttering severity.” AR 246. Nine months later, in late 2017, a speech pathologist 18 reported that J.H. was a “health[y] teenager and he plays football and soccer in 19 school” and that his medical and developmental history was “unremarkable.” AR
20 621. In this same evaluation, though, his SSI-4 score indicated that J.H.’s stuttering 1 was, once again, “very severe.” AR 621–22. 2 Over a year later, in late 2018, a stuttering evaluation showed “moderate”
3 stuttering and J.H. indicated was “not quite ready yet” to cease accommodations at 4 school. AR 306. The school district at that time also determined J.H. continued to 5 qualify for speech and language therapy, and that his stuttering still “adversely
6 affect[ed] his ability to communicate his academic knowledge, wants and needs in 7 the classroom, with peers, and at home.” AR 307. J.H.’s teachers reported that his 8 stuttering did not affect his performance in classes which required little oral 9 participation. See AR 305. But his teachers also noted that J.H. “continue[d] to
10 struggle expressing his thoughts and ideas due to his dysfluencies.” Id. He still 11 stuttered more than ten percent of the time during a speaking task in 2018. AR 306. 12 And he had “[l]imited intelligibility due to initial syllable, word, and phrase
13 repetitions, as well as prolongations.” AR 307. 14 Taken together, the Court cannot find that the ALJ presented clear and 15 convincing evidence for rejecting J.H.’s testimony. The ALJ provided no analysis 16 to support her assertion that J.H.’s testimony was inconsistent with the medical
17 evidence. J.H. may have made certain strides, but that does not mean that he does 18 not still experience marked or severe limitations rendering him disabled. The ALJ 19 has not met its “demanding” standard. See Moore, 278 F.3d at 924.
20 // 1 C. Evaluation of the Opinion Evidence 2 1. Lay Witnesses
3 The testimony of a lay witness alone can never establish disability. 20 C.F.R. 4 § 416.929(a), (b) (“[S]tatements about [a claimant’s] pain or other symptoms will 5 not alone establish that [the claimant is] disabled. There must be objective medical
6 evidence from an acceptable medical source that shows [the claimant has] a medical 7 impairment(s).”). And to reject a lay witness’s opinion, the ALJ need only cite a 8 “germane” reason for doing so. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th 9 Cir. 2005) (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)) “Inconsistency
10 with medical evidence is one such reason.” Id. (upholding ALJ’s rejection of 11 symptom testimony by claimant’s spouse and friends where inconsistent with 12 objective medical evidence).
13 i. Plaintiff 14 Plaintiff contends the ALJ did not assess the weight owed to her relevant 15 opinion evidence, and thus did not provide “germane” reasons for discounting her 16 testimony. ECF No. 14 at 17. Plaintiff completed a function report, explained that
17 J.H. did not seem to make progress in 2017, gave input for J.H.’s IEPs, and attended 18 treatment visits. See AR 227, 262, 314, 332, 370 & 463. Parents provide “important 19 sources of information because they see [the child] every day.” 20 C.F.R. §
20 416.924a(a)(2)(i). An ALJ must explicitly explain why they reject significant, 1 probative evidence. Flores v. Shalala, 49 F.3d 562, 570–71 (9th Cir. 1995). 2 Although the ALJ considered Plaintiff’s opinion, she erred by not making an
3 express credibility finding. See, e.g., AR 27, 32; cf. Lewis, 236 F.3d at 511–512. It 4 is thus unclear to what extent the ALJ credited Plaintiff’s testimony. 5 ii. Mr. Ruiz
6 Plaintiff also contends that the ALJ did not provide a germane reason for 7 refusing to fully credit J.H.’s teacher, Bulmaro Ruiz’s, opinion. Teachers can 8 provide insight of a claimant’s day-to-day functioning, especially compared with 9 other children without impairments. 20 C.F.R. § 416.924a(a)(2)(ii). The ALJ stated
10 she gave Mr. Ruiz’s opinion only “some weight,” but agreed that J.H. had “some 11 limitations” interacting and relating to others and acquiring or using information. 12 AR 28. She also credited his opinion as “helpful.” Id.
13 An ALJ harmfully errs if she fails to address a source’s statements that, if 14 properly credited, would compel disability. Hill v. Astrue, 698 F.3d 1153, 1160 (9th 15 Cir. 2012). Mr. Ruiz opined that J.H. suffered “very serious problems,” which 16 Plaintiff argues are consistent with at least marked limitations in Domains 1, 3, and
17 5. AR 249, 251. But the ALJ merely stated that she gave his opinion “some weight.” 18 AR 28. The ALJ erred by not providing a germane reason for rejecting Mr. Ruiz’s 19 opinion.
20 // 1 2. Medical Opinions 2 The Ninth Circuit recognized a hierarchy among the sources of medical
3 opinions, known as the treating physician rule or the treating source rule, for claims 4 filed before March 27, 2017.4 Murray v. Heckler, 722 F.2d 499 (9th Cir. 1983); see 5 also 82 Fed. Reg. 5844, 5853 (Jan. 18, 2017); Black & Decker Disability Plan v.
6 Nord, 538 U.S. 822, 829 (2003). Specifically, the ALJ must articulate “specific and 7 legitimate reasons supported by substantial evidence in the record” in order to 8 “reject the treating doctor’s ultimate conclusions” when the treating doctor’s 9 opinion was contradicted by another doctor, or “clear and convincing reasons” if it
10 was not. Lester, 81 F.3d at 830–31. And “[t]he opinion of a nonexamining physician 11 cannot by itself constitute substantial evidence that justifies the rejection of the 12 opinion of either an examining physician or a treating physician.” Id. at 831. The
13 ALJ must point to other evidence in the record which supports the nonexamining 14 physician’s opinion. Id. 15 i. Dr. Heisey 16 The ALJ gave “some weight” to Dr. Heisey’s two reports in this case. AR
17 28. Dr. Heisey’s first report found that J.H. had marked limitations in Domain 3 and 18 his second report found that J.H. had marked limitations attending and completing 19 4 The regulations were updated in 2017 to eliminate this hierarchy for new claims. 20 See 20 C.F.R. § 404.1520c. 1 oral tasks, which corresponds to Domain 2. AR 456, 635. The ALJ determined that 2 Dr. Heisey did not adequately explain why J.H. was “so severe” in Domain 3. AR
3 28. The ALJ rejected his second report because it was only a “check mark” and did 4 not give an explanation or objective findings to support his conclusion. Id. Finally, 5 the ALJ questioned why Dr. Heisey noted only the Domain 2 limitations in his
6 second report. Id. 7 Plaintiff argues the ALJ erred in not giving full weight to each report. For the 8 first report, she points to Dr. Heisey’s explanation that his Domain 3 assessment 9 was because of J.H.’s difficulties with verbal communication. AR 456. She also
10 argues that the ALJ should not have rejected the checkbox report because the 11 opinion is based on the physician’s experience and supported by the record. ECF 12 No. 14 at 19 (citing Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014)). Finally,
13 Plaintiff argues that Dr. Heisey’s Domain 2 findings were related to a more focused 14 questionnaire, rather than changes in J.H.’s functioning. Id. 15 While it is certainly possible to interpret the record in the way advanced by 16 Plaintiff, the ALJ provided substantial evidence for giving Dr. Heisey’s opinion
17 only some weight. It is ALJ’s responsibility to resolve ambiguities in the record, 18 which the Court finds occurred here. See Ford v. Saul, 950 F.3d 1141, 1149 (9th 19 Cir. 2020). The ALJ reasonably concluded that Dr. Heisey’s opinions lacked
20 support from his treatment notes and adequate explanation. AR 28; see also Burch 1 v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Accordingly, the ALJ did not err in 2 partially rejecting Dr. Heisey’s opinions.
3 ii. SLP Endrina 4 The ALJ gave “some weight” to SLP Endrina’s findings that J.H. was 5 intelligible fifty to sixty percent of the time when not repeating or rephrasing, and
6 seventy percent of the time after such repetition. AR 27–28. The ALJ noted that 7 SLP Endrina’s opinion did not address the childhood function domains. AR 28. And 8 while SLP Endrina observed that J.H.’s stuttering interfered with his ability to 9 understand directions, the ALJ remarked that he “did not explain this observation
10 very well and it is unclear how the claimant’s ability to understand instructions 11 would be impacted since the claimant did not have a hearing deficit.” AR 31. “An 12 ALJ is not required to take [] opinions at face value, but may take into account the
13 quality of the explanation when determining how much weight to give a medical 14 opinion.” Ford, 950 F.3d at 1155. The ALJ reasonably interpreted the evidence to 15 partially discount SLP Endrina’s opinion, so the Court cannot find that the ALJ 16 harmfully erred. See Burch, 400 F.3d at 680.
17 iii. Dr. Patterson 18 The ALJ gave “limited weight” to Dr. Patterson’s opinion, finding it “vague 19 and not well-supported.” AR 28. The ALJ also noted that was “unclear” whether
20 Dr. Patterson considered that J.H.’s stuttering was worse around strangers and when 1 he was nervous. Id. Plaintiff contends this is error, because Dr. Patterson reviewed 2 prior IEP documents and completed a full evaluation of J.H. which included
3 narrative reasoning. ECF No. 14 at 20. Plaintiff emphasizes that Dr. Patterson 4 “specifically noted that even getting a complete history was difficult due to JH’s 5 stutter and this ‘interfered with virtually all aspects of communication,’ JH’s speech
6 was both ‘very slow’ and ‘laborious,’ he could not keep pace with a normal 7 conversation, and this very severe stutter was evident during casual conversation 8 and well-documented by the school.” ECF No. 14 at 20–21 (quoting AR 553, 555 9 & 556). And Plaintiff also notes that Dr. Patterson addressed that J.H.’s stuttering
10 was worse around new people and when he was nervous on the first page of his 11 report. AR 553. This Court agrees with Plaintiff and finds that the ALJ did not 12 support its decision to not fully credit Dr. Patterson’s opinion with substantial
13 evidence. 14 iv. Dr. Winfrey 15 Plaintiff argues that the ALJ erred by crediting Dr. Winfrey’s opinion 16 because she did not examine J.H., and her opinion is inconsistent with the other
17 opinions in the record. ECF No. 14 at 21. Defendant argues that the ALJ’s finding 18 was reasonable but does not provide any argument on how the record supports Dr. 19 Winfrey’s opinion. See ECF No. 15 at 16. On remand, the ALJ is instructed to give
20 weight to this non-examining source only to the extent that it is consistent with other 1 evidence in the record. See Lester, 81 F.3d at 831. 2 D. Assessment of the Listings and Domains
3 1. Listing 112.02 4 Plaintiff argues that the ALJ erred by failing to properly assess whether J.H. 5 met or equaled Listing 112.02. ECF No. 14 at 15. Dr. Winfrey stated that Listing
6 112.02 was “more applicable” to disorders where there is a decline in speech. AR 7 25. But Listing 112.02(A)(4) is met with a clinically significant deviation in normal 8 development or a significant cognitive decline from a prior level of functioning in 9 language and an extreme limitation in one or a marked limitation in two areas of
10 mental functioning. 20 C.F.R. Part 404, Subpart P, App’x 1, § 112.02(B)(1)(a). 11 “An ALJ must evaluate the relevant evidence before concluding that a 12 claimant’s impairments do not meet or equal a listed impairment. A boilerplate
13 finding is insufficient to support a conclusion that a claimant’s impairment does not 14 do so.” Lewis, 236 F.3d at 512. The ALJ erred by discounting Listing 112.02 15 without evaluating the relevant evidence. 16 2. Domains
17 As explained above, the ALJ erred in its determination that J.H. did not have 18 marked or extreme limitations in each of the Domains because he showed 19 improvement and because his limitations worsened when he was nervous. The
20 Court thus directs the ALJ to reevaluate J.H.’s limitations in each of the Domains 1 accordance with this Order. 2 Accordingly, IT IS HEREBY ORDERED: 3 1. Plaintiffs Motion for Summary Judgment, ECF No. 14, is 4 GRANTED.
5 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 6 DENIED.
7 3. The Clerk’s Office shall ENTER JUDGMENT in favor of 8 PLAINTIFF and thereafter CLOSE the file. 9 4. This matter shall be REMANDED to the Social Security 10 Administration for further proceedings consistent with this order. 11 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 12 || provide copies to all counsel. 13 DATED this 11" day of May 2021. 14 (pam sce SA VADOR MENDSp\\, JR. 15 United States District Judge 16 17 18 19 20
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY