EASTERN DISTRICT OF WASHINGTON 1 Apr 17, 2024
2 SEAN F. MCAVOY, CLERK
3 UNITED STATES DISTRICT COURT
4 EASTERN DISTRICT OF WASHINGTON 5 MICHELLE P., O/B/O L.P., 6 No. 2:23-CV-0146-WFN Plaintiff, 7 ORDER GRANTING -vs- PLAINTIFF'S MOTION 8 MARTIN O'MALLEY, Commissioner of 9 Social Security, 1 ECF Nos. 8, 14
10 Defendant. 11 12 Pending before the Court are Plaintiff's Opening Brief and the Commissioner's Brief 13 in response. ECF Nos. 8, 14. Attorney Christopher H. Dellert represents Michelle P. 14 (Plaintiff), on behalf of L.P., a minor (Claimant); Special Assistant United States Attorney 15 Thomas E. Chandler represents the Commissioner of Social Security (Defendant). After 16 reviewing the administrative record and the briefs filed by the parties, the Court GRANTS 17 Plaintiff's motion, DENIES Defendant's motion, and REMANDS the matter for further 18 proceedings under sentence four of 42 U.S.C. § 405(g). 19 JURISDICTION 20 Plaintiff, on behalf of Claimant, filed an application for benefits on July 27, 2020, 21 alleging disability since July 1, 2020. The application was denied initially and upon 22 reconsideration. Administrative Law Judge (ALJ) Marie Palachuk held a hearing on June 8, 23 2022, and issued an unfavorable decision on June 27, 2022. Tr. 15-27. The Appeals Council 24 25 26 1 This action was originally filed against Kilolo Kijakazi in her capacity as the acting 27 Commissioner of Social Security. Martin O'Malley is substituted as the defendant because 28 he is now the Commissioner of Social Security. See Fed. R. Civ. P. 25(d). 1 denied review on March 1, 2023. Tr. 1-6. Plaintiff appealed this final decision of the 2 Commissioner on May 12, 2023. ECF No. 1. 3 STANDARD OF REVIEW 4 The ALJ is responsible for determining credibility, resolving conflicts in medical 5 testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 6 1995). The ALJ's determinations of law are reviewed de novo, with deference to a 7 reasonable interpretation of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 8 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by 9 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 10 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less 11 than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant 12 evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson 13 v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 14 197, 229 (1938)). If the evidence is susceptible to more than one rational interpretation, the 15 Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1098; Morgan 16 v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence 17 supports the administrative findings, or if conflicting evidence supports a finding of either 18 disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 19 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by substantial 20 evidence will be set aside if the proper legal standards were not applied in weighing the 21 evidence and making the decision. Brawner v. Sec'y of Health and Human Services, 839 22 F.2d 432, 433 (9th Cir. 1988). 23 SEQUENTIAL EVALUATION PROCESS 24 The Commissioner has established a three-step sequential evaluation process for 25 determining whether a child is disabled. 20 C.F.R. § 416.924. At step one, it must be 26 determined whether the claimant is performing substantial gainful activity. Id. If the 27 claimant is not performing substantial gainful activity, at step two, it must be determined 28 whether the claimant has a "severe" medically determinable impairment or combination 1 thereof. Id. If the claimant has a severe impairment or combination of impairments that 2 meets the duration requirement, it must be determined at step three whether that impairment 3 meets, medically equals, or functionally equals a listed impairment in 20 C.F.R. § 404, 4 Part B, Appendix 1, Subpart P. Id. If the child's impairment meets or medically equals a 5 listed impairment, then the claimant will be found disabled. If the impairment does not meet 6 or medically equal a listed impairment, it must be determined whether the impairment 7 functionally equals a listed impairment by assessing the child's limitations in six broad areas 8 of functioning called "domains." The domains include the following: (1) acquiring and 9 using information, (2) attending and completing tasks, (3) interacting and relating with 10 others, (4) moving about and manipulating objects, (5) caring for oneself, (6) health and 11 physical well-being. 20 C.F.R. § 416.926a. The claimant's impairment will be considered 12 functionally equivalent if the claimant has "marked" limitations in two domains, or 13 "extreme" limitations in one domain. Id. A determination of functional equivalence is the 14 responsibility of the state agency medical or psychological staff at the initial and 15 reconsideration levels, of an ALJ at the hearing level, and of the Appeals Council at that 16 level. 20 C.F.R. § 416.926a(n). If a claimant meets all three steps and has an impairment 17 that meets, medically equals, or functionally equals a listed impairment for the required 18 duration, he or she will be found disabled. 19 ADMINISTRATIVE FINDINGS 20 On June 27, 2022, the ALJ issued a decision finding Claimant was not disabled as 21 defined in the Social Security Act. Tr. 15-27. 22 At step one, the ALJ found Claimant was a school-age child and had not engaged in 23 substantial gainful activity since July 27, 2020, the application date. Tr. 16. 24 At step two, the ALJ found the Claimant has the following severe impairments: 25 dyslexia; spelling disorder; and hearing loss, left ear. Tr. 16. 26 At step three, the ALJ found Claimant does not have an impairment or combination 27 or impairments that meets or equals the severity of a listed impairment. Tr. 16. As to 28 functional equivalence, the ALJ found Plaintiff had less than marked limitations in acquiring 1 and using information, attending and completing tasks, caring for himself, and health and 2 physical well-being; and no limitations in interacting and relating with others and moving 3 about and manipulating objects. Tr. 18. The ALJ thus determined Plaintiff's impairments 4 did not result in two marked limitations or one extreme limitation in any of the six domains. 5 Tr. 27. 6 The ALJ thus concluded Plaintiff has not been disabled since the application date. 7 Tr. 27.
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EASTERN DISTRICT OF WASHINGTON 1 Apr 17, 2024
2 SEAN F. MCAVOY, CLERK
3 UNITED STATES DISTRICT COURT
4 EASTERN DISTRICT OF WASHINGTON 5 MICHELLE P., O/B/O L.P., 6 No. 2:23-CV-0146-WFN Plaintiff, 7 ORDER GRANTING -vs- PLAINTIFF'S MOTION 8 MARTIN O'MALLEY, Commissioner of 9 Social Security, 1 ECF Nos. 8, 14
10 Defendant. 11 12 Pending before the Court are Plaintiff's Opening Brief and the Commissioner's Brief 13 in response. ECF Nos. 8, 14. Attorney Christopher H. Dellert represents Michelle P. 14 (Plaintiff), on behalf of L.P., a minor (Claimant); Special Assistant United States Attorney 15 Thomas E. Chandler represents the Commissioner of Social Security (Defendant). After 16 reviewing the administrative record and the briefs filed by the parties, the Court GRANTS 17 Plaintiff's motion, DENIES Defendant's motion, and REMANDS the matter for further 18 proceedings under sentence four of 42 U.S.C. § 405(g). 19 JURISDICTION 20 Plaintiff, on behalf of Claimant, filed an application for benefits on July 27, 2020, 21 alleging disability since July 1, 2020. The application was denied initially and upon 22 reconsideration. Administrative Law Judge (ALJ) Marie Palachuk held a hearing on June 8, 23 2022, and issued an unfavorable decision on June 27, 2022. Tr. 15-27. The Appeals Council 24 25 26 1 This action was originally filed against Kilolo Kijakazi in her capacity as the acting 27 Commissioner of Social Security. Martin O'Malley is substituted as the defendant because 28 he is now the Commissioner of Social Security. See Fed. R. Civ. P. 25(d). 1 denied review on March 1, 2023. Tr. 1-6. Plaintiff appealed this final decision of the 2 Commissioner on May 12, 2023. ECF No. 1. 3 STANDARD OF REVIEW 4 The ALJ is responsible for determining credibility, resolving conflicts in medical 5 testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 6 1995). The ALJ's determinations of law are reviewed de novo, with deference to a 7 reasonable interpretation of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 8 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by 9 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 10 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less 11 than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant 12 evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson 13 v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 14 197, 229 (1938)). If the evidence is susceptible to more than one rational interpretation, the 15 Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1098; Morgan 16 v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence 17 supports the administrative findings, or if conflicting evidence supports a finding of either 18 disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 19 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by substantial 20 evidence will be set aside if the proper legal standards were not applied in weighing the 21 evidence and making the decision. Brawner v. Sec'y of Health and Human Services, 839 22 F.2d 432, 433 (9th Cir. 1988). 23 SEQUENTIAL EVALUATION PROCESS 24 The Commissioner has established a three-step sequential evaluation process for 25 determining whether a child is disabled. 20 C.F.R. § 416.924. At step one, it must be 26 determined whether the claimant is performing substantial gainful activity. Id. If the 27 claimant is not performing substantial gainful activity, at step two, it must be determined 28 whether the claimant has a "severe" medically determinable impairment or combination 1 thereof. Id. If the claimant has a severe impairment or combination of impairments that 2 meets the duration requirement, it must be determined at step three whether that impairment 3 meets, medically equals, or functionally equals a listed impairment in 20 C.F.R. § 404, 4 Part B, Appendix 1, Subpart P. Id. If the child's impairment meets or medically equals a 5 listed impairment, then the claimant will be found disabled. If the impairment does not meet 6 or medically equal a listed impairment, it must be determined whether the impairment 7 functionally equals a listed impairment by assessing the child's limitations in six broad areas 8 of functioning called "domains." The domains include the following: (1) acquiring and 9 using information, (2) attending and completing tasks, (3) interacting and relating with 10 others, (4) moving about and manipulating objects, (5) caring for oneself, (6) health and 11 physical well-being. 20 C.F.R. § 416.926a. The claimant's impairment will be considered 12 functionally equivalent if the claimant has "marked" limitations in two domains, or 13 "extreme" limitations in one domain. Id. A determination of functional equivalence is the 14 responsibility of the state agency medical or psychological staff at the initial and 15 reconsideration levels, of an ALJ at the hearing level, and of the Appeals Council at that 16 level. 20 C.F.R. § 416.926a(n). If a claimant meets all three steps and has an impairment 17 that meets, medically equals, or functionally equals a listed impairment for the required 18 duration, he or she will be found disabled. 19 ADMINISTRATIVE FINDINGS 20 On June 27, 2022, the ALJ issued a decision finding Claimant was not disabled as 21 defined in the Social Security Act. Tr. 15-27. 22 At step one, the ALJ found Claimant was a school-age child and had not engaged in 23 substantial gainful activity since July 27, 2020, the application date. Tr. 16. 24 At step two, the ALJ found the Claimant has the following severe impairments: 25 dyslexia; spelling disorder; and hearing loss, left ear. Tr. 16. 26 At step three, the ALJ found Claimant does not have an impairment or combination 27 or impairments that meets or equals the severity of a listed impairment. Tr. 16. As to 28 functional equivalence, the ALJ found Plaintiff had less than marked limitations in acquiring 1 and using information, attending and completing tasks, caring for himself, and health and 2 physical well-being; and no limitations in interacting and relating with others and moving 3 about and manipulating objects. Tr. 18. The ALJ thus determined Plaintiff's impairments 4 did not result in two marked limitations or one extreme limitation in any of the six domains. 5 Tr. 27. 6 The ALJ thus concluded Plaintiff has not been disabled since the application date. 7 Tr. 27. 8 ISSUES 9 The question presented is whether substantial evidence supports the ALJ's decision 10 denying benefits and, if so, whether that decision is based on proper legal standards. 11 Plaintiff raises the following issues for review: (A) whether the ALJ failed to develop 12 the record; (B) whether the ALJ erred by taking expert testimony before taking the testimony 13 of Claimant and Plaintiff; (C) whether the ALJ erred at step two; (D) whether the ALJ erred 14 in evaluating the medical evidence; and (E) whether the ALJ erred by discounting Plaintiff's 15 testimony. As discussed below, because the Court concludes the ALJ erred with respect to 16 the first issue, it is not necessary to reach Plaintiff's remaining assignments of error. 17 DISCUSSION 18 Plaintiff contends the ALJ erred by not having a complete case review by an 19 appropriate medical expert, in accordance with Howard ex rel. Wolff v. Barnhart, 341 F.3d 20 1006 (9th Cir. 2003) and Social Security Acquiescence Ruling 04-1(9). ECF No. 8 at 4-6. 21 For a disability claim of an individual under eighteen years old, the ALJ "shall make 22 reasonable efforts to ensure that a qualified pediatrician or other individual who specializes 23 in a field of medicine appropriate to the disability of the individual (as determined by 24 the Commissioner of Social Security) evaluates the case of such individual." 42 U.S.C. 25 § 1382c(a)(3)(I). The pediatrician or other appropriate specialist must base their evaluation 26 on the record in its entirety. Howard, 341 F.3d at 1014. To satisfy this requirement, the 27 ALJ may rely on a case evaluation made by a state agency consultant that is already in the 28 record, or the ALJ may rely on the testimony of a medical expert. Social Security 1 Acquiescence Ruling (AR) 04-01(9), available at 2004 WL 875081. When the ALJ relies 2 on the case evaluation made by a state agency consultant, "the record must include the 3 evidence of the qualification of the State agency ... consultant." Id. 4 It is undisputed that the ALJ did not "ensure that a qualified pediatrician … 5 evaluate[d]" Claimant's case. 42 U.S.C. § 1382c(a)(3)(I); see ECF No. 14 at 5-6. The 6 Commissioner also concedes that the State agency consultants, on whom the ALJ relied, did 7 not review the entirety of the record, as "numerous records were developed after the date of 8 the State agency consultants' reviews." ECF No. 14 at 6. The Commissioner further 9 concedes "there is no additional information to determine whether their qualifications are 10 appropriate to the instant case." Id. Nevertheless, the Commissioner contends such errors 11 were harmless "as the ALJ complied with AR 04-1(9) by utilizing a medical expert at the 12 hearing." Id. The Court disagrees. 13 As with the State agency consultants, it is not apparent that the testifying medical 14 expert, Jay M. Toews, M.D., has the requisite statutory qualifications. See 42 U.S.C. 15 § 1382c(a)(3)(I). While the record indicates Dr. Toews is a clinical and behavioral 16 psychologist, see Tr. 27, 38-43, it does not indicate that he "specializes in a field of medicine 17 appropriate to the disability" of Claimant. AR 04-1(9) (emphasis added); see also Howard, 18 341 F.3d at 1014 (an "ALJ is required to make a reasonable effort to obtain a case evaluation, 19 based on the record in its entirety, from a pediatrician or other appropriate specialist") 20 (emphasis added). Importantly, an "individual who specializes in a field of medicine 21 appropriate to the disability" of the child or an "appropriate specialist" are statutory and 22 regulatory alternatives to a "pediatrician." See 42 U.S.C. § 1382c(a)(3)(I); AR 04-1(9). It 23 is thus not apparent that Dr. Toews has the requisite qualifications to evaluate a child's claim. 24 Cf. Biden v. Nebraska, 143 S. Ct. 2355, 2378 (2023) (Barrett, J., concurring) ("To strip a 25 word from its context is to strip that word of its meaning."). 26 Resisting this conclusion, the Commissioner maintains, in a conclusory fashion, that 27 the ALJ's use of Dr. Toews's testimony satisfied AR 04-1(9). This argument overlooks that 28 the use of Dr. Toews's testimony to satisfy AR 04-1(9) was as inherently deficient as the 1|| ALJ's use of the State agency consultants. The Commissioner offers no authority that woul 2 || compel the Court to depart from adhering to the plain meaning of the unambiguous statutor 3|| and regulatory language at issue. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 340-4 (1997); United States v. Bucher, 375 F.3d 929, 932 (9th Cir. 2004). 5 Accordingly, the Court finds the ALJ erred in failing to obtain a comprehensive cas 6|| evaluation by an appropriately qualified medical expert and this error was consequentia Evaluation of the case as a whole by an appropriately qualified medical expert is critical t the adjudicator's longitudinal understanding of Claimant's impairments and resultin 9|| limitations. See Howard, 341 F.3d at 1014. 10 CONCLUSION 11 Having reviewed the record and the ALJ's findings, the Commissioner's final decisio 12|| is REVERSED and this case is REMANDED for further proceedings under sentence for 13|| of 42 U.S.C. § 405(g). On remand, the ALJ shall call a qualified pediatrician or othe 14|| appropriately qualified medical specialist to review the case in its entirety and to reevaluat the Domains and Listings. The ALJ shall also reconsider Claimant's subjective complaint each lay witness statement, and all the medical evidence of record, taking into consideratio 17|| any other evidence or testimony relevant to Claimant's disability claim. Accordingly, 18 IT IS ORDERED that: 19 1. Plaintiffs motion to reverse, filed August 3, 2023, ECF No. 8, is GRANTED. 20 2. Defendant's motion to affirm, filed November 27, 2023, ECF No. 14, | 21|| DENIED. 22 The District Court Executive is directed to file this Order and provide a copy t 23 || counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file sha be CLOSED. 25 DATED this 17th day of April, 2024. ° LWA. 27 WM, FREMMING NIELSEN 28 || 03-07-24 SENIOR UNITED STATES DISTRICT JUDGE
ORDER GRANTING