1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 BRENDA VILLA, on behalf of R.A.B. (a Case No. 1:22-cv-00067-SKO minor), 10 Plaintiff, ORDER ON PLAINTIFF’S SOCIAL 11 SECURITY COMPLAINT
12 v. (Doc. 1) 13
14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16 _____________________________________/ 17
18 I. INTRODUCTION 19 On January 17, 2022, Plaintiff Brenda Villa (“Plaintiff”), on behalf of her minor child R.A.B., 20 filed a complaint under 42 U.S.C. § 1383(c) seeking judicial review of a final decision of the 21 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for 22 Supplemental Security Income (SSI) under the Social Security Act (the “Act”). (Doc. 1.) The matter 23 is currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 24 the Honorable Sheila K. Oberto, United States Magistrate Judge.1 25 II. FACTUAL BACKGROUND 26 On February 8, 2018, an application for SSI was protectively filed by Plaintiff on behalf of 27 R.A.B., a child under the age of 18. (Administrative Record (“AR”) 15, 59, 70, 215, 221) (R.A.B. 28 1 was born on August 10, 2009).) The application alleged that R.A.B. became disabled on February 2 1, 2016, due to attention deficit hyperactivity disorder (ADHD), defiant and aggressive behaviors, 3 lack of impulse control, difficulty with memory, and “constant bathroom accidents.” (AR 15, 59– 4 60, 70–71, 81, 90, 215, 221.) 5 A. Relevant Evidence of Record2 6 1. Medical Evidence 7 R.A.B. experienced issues focusing at school and was diagnosed with ADHD. (AR 678.) In 8 April 2016, R.A.B.’s teacher indicated there was improvement as to his focus and physical behavior 9 issues when he began taking medication. (AR 678.) His teacher described how R.A.B. was “making 10 progress and [was] responsive to classroom interventions.” (AR 678.) At the time, R.A.B. did not 11 qualify for special education. (AR 678.) School records noted that although R.A.B.’s reading was 12 slightly below grade level, he was “right where he should [be] academically.” (AR 678.) 13 Mental health treatment progress notes from Turning Point Visalia Youth Services indicated 14 continued improvement of R.A.B.’s symptoms with medication. For example, at a session in 15 September 2018, R.A.B. shared that without his ADHD medication, he would not be able to sit still 16 in class and focus. (AR 723.) R.A.B. noted that when he is experiencing his ADHD symptoms, he 17 is often forgetful, impulsive, and off task. (AR 723.) In October 2018, R.A.B. noted he felt calmer 18 when taking his medications, although one side effect of the medication was reduced appetite. (AR 19 706.) In November 2018, R.A.B. was still taking his medications and described how during school 20 hours, he was able to focus and pay attention in class and completed his class work. (AR 697.) 21 In December 2018, though R.A.B. appeared slightly fidgety, he reported continued 22 compliance with his medication. (AR 683.) The provider noted that R.A.B. was able to sit still, 23 participate in the session, listen attentively when spoken to, and share about how frequently he was 24 off task when he was at school. (AR 683.) At another session in December 2018, R.A.B. admitted 25 that when he was not taking medication, he needed to use coping skills to stay on task. (AR 795.) 26 Specifically, R.A.B. explained that after school, he became easily distracted and had difficulty 27
28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 paying attention when trying to complete his schoolwork. (AR 795.) Treatment notes throughout 2 2019 indicated that R.A.B. was able to focus in class and most of the day when he was compliant 3 with his medication regimen. (See AR 737, 767, 779, 787.) 4 2. Teacher’s Assessment 5 R.A.B.’s third grade teacher, Emilee Washington, completed an assessment titled “Child 6 Symptom Inventory – 4: Teacher Checklist.” (AR 297–300.) Ms. Washington noted that R.A.B.’s 7 current academic performance as to reading and arithmetic were at the appropriate grade level, but 8 R.A.B.’s writing was one to two years below grade level. (AR 297.) Ms. Washington also reported 9 that when R.A.B. was not taking his medications, he “very often” has difficulty paying attention to 10 tasks or play activities, is easily distracted by other things, and has difficulty remaining seated when 11 asked to do so. (AR 297–98.) Ms. Washington further reported that when R.A.B. was not taking 12 his medications, he “often” does not seem to listen when spoken to directly, has difficulty following 13 through with instructions and finishing things, has difficulty organizing tasks and activities, fidgets 14 with his hands or feet and squirms in his seat, blurts out answers to questions before they have been 15 completed, and has difficulty awaiting his turn in group activities. (AR 297–98.) 16 3. Opinion Evidence 17 In May 2018, R.A.B. and Plaintiff attended a consultive psychological examination with 18 Steven C. Swanson, Ph.D. (AR 524–30.) Plaintiff reported that R.A.B. has a history of aggressive 19 and antisocial behavior. (AR 525.) She described how R.A.B. has a bad temper, can be defiant with 20 teachers, and has nearly been suspended from school several times. (AR 525.) Dr. Swanson 21 administered the Wechsler Intelligence Scale for Children – 4th Edition (WISC-IV), and found that 22 R.A.B. fell within the average range of intellectual ability. (AR 526–27.) Dr. Swanson determined 23 that R.A.B.’s WISC-IV results indicated he could be expected to perform academically at a level 24 that was consistent with same-aged peers. (AR 527.) Dr. Swanson opined that R.A.B. had the ability 25 to understand and respond to increasingly complex requests, instructions, or questions in an age- 26 appropriate manner. (AR 528.) Dr. Swanson also opined that R.A.B. appeared to have the ability 27 to communicate by understanding, initiating, and using language and to respond to stimuli in a 28 mostly age-appropriate manner. (AR 528.) Dr. Swanson further found that R.A.B. appeared to have 1 the ability to socially integrate with peers and adults in a mostly age-appropriate fashion, “though 2 he may be aggressive and exploitative of others.” (AR 528.) 3 R.A.B. and Plaintiff returned to see Dr. Swanson in December 2019. (AR 591–96.) R.A.B. 4 reported feeling normal and happy most days, and Dr. Swanson noted that R.A.B. maintained 5 satisfactory attention and concentration. (AR 593.) Dr. Swanson administered the Wechsler 6 Intelligence Scale for Children – 5th Edition (WISC-V), and found that R.A.B. fell within the 7 borderline range of intellectual functioning. (AR 593–94.) Dr. Swanson determined that R.A.B.’s 8 WISC-V results indicated that he could be expected to perform academically at a level somewhat 9 lower than same-aged peers. (AR 594.) Aside from these findings, Dr. Swanson’s opinion did not 10 largely differ from his prior opinion in May 2018. (See AR 594–95.) 11 In December 2019, R.A.B. and Plaintiff also attended a consultive examination with Birgit 12 Siekerkotte, M.D. (AR 598–602.) Plaintiff stated R.A.B. had accidents with bowel movements and 13 he was aggressive and defiant. (AR 598.) Dr. Siekerkotte noted that R.A.B. was in regular education 14 “where he is doing well.” (AR 599.) Plaintiff explained that R.A.B. has tantrums every day, has 15 episodes where he hits himself once or twice a week, hits others (though not at school), and once 16 tried to suffocate his sister by putting a pillow over her face. (AR 599.) Plaintiff also reported that 17 R.A.B. is supposed to do household chores, but he often needs reminders to do so. (AR 599.) Dr. 18 Siekerkotte opined that R.A.B. had no limitations as to acquiring and using information, attending 19 and completing tasks, moving about and manipulating objects, and caring for self. (AR 601–02.) 20 Dr. Siekerkotte further opined that R.A.B. had marked limitations when interacting and relating to 21 others due to behaviors such as trying to suffocate his sister and hitting others, and R.A.B. had less 22 than marked limitation as to health and physical wellbeing due to accidents with bowel movements. 23 (AR 601–02.) 24 B. Administrative Proceedings 25 The Commissioner denied Plaintiff’s application for benefits initially on June 13, 2018, and 26 again on reconsideration on November 30, 2018. (AR 66–69; AR 77–80, 85–88, 90–94.) 27 Consequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 95– 28 100.) The ALJ conducted a hearing on May 21, 2021. (AR 30–47.) Plaintiff appeared at the hearing 1 with R.A.B. and her counsel, and gave testimony. (AR 39–45.) R.A.B. also testified. (AR 36–40.) 2 In a decision dated June 16, 2021, the ALJ found that R.A.B. was not disabled. (AR 15–23.) 3 Plaintiff sought review of this decision before the Appeals Council, which denied review on 4 November 18, 2021. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 5 Commissioner. 20 C.F.R. § 416.1481. 6 III. SCOPE OF REVIEW 7 The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported 8 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 9 1998). In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 10 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 11 determine whether the Commissioner applied the proper legal standards and whether substantial 12 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 13 909, 911 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than a 14 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 15 “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as 16 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting 17 Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The Court “must consider the 18 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 19 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum of 20 supporting evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and 21 internal quotation marks omitted). 22 IV. APPLICABLE LAW 23 A child (defined as an individual under the age of eighteen) is considered disabled for 24 purposes of disability benefits if they are unable to engage in substantial gainful activity due to a 25 medically determinable physical or mental impairment. Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 26 (quoting 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)); Lowe v. Berryhill, No. 1:17-cv-00349-SKO, 27 2018 WL 2096264, at *7 (E.D. Cal. May 7, 2018). The impairment or impairments must “result[] 28 in marked and severe functional limitations, and which can be expected to result in death or which 1 has lasted or can be expected to last for a continuous period of not less than 12 months.” Merrill ex 2 rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000) (quoting 42 U.S.C. § 1382c(a)(3)(C)(i)). 3 The ALJ must undertake a three-step sequential analysis in the process of evaluating a child’s 4 disability. In the first step, the ALJ must determine whether the child is engaged in substantial 5 gainful activity. 20 C.F.R. § 416.924. If not, in the second step, the ALJ must determine whether 6 the child has a severe impairment or a combination of impairments causing marked functional 7 limitations. Id. If so, in the third step, the ALJ must determine whether the child has a severe 8 impairment or combination of impairments that meets or equals the requirements of the Listing of 9 Impairments (“Listing”), 20 C.F.R. 404, Subpart P, App. 1. Id. If so, the child is found to be 10 disabled, assuming the twelve-month duration requirement is also met. Id. 11 Step three encompasses two analytical steps. First, it must be determined whether the 12 claimant’s impairment meets or medically equals a Listing. Second, the impairment must also 13 satisfy all the criteria of the Listing. 20 C.F.R. § 416.925(d). The mere diagnosis of an impairment 14 in the Listing is insufficient, without more, to sustain a finding of disability. Young v. Sullivan, 911 15 F.2d 180, 183 (9th Cir. 1990); Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). If the claimant 16 does not meet or medically equal a Listing, they may still be considered disabled if an impairment 17 results in limitations that “functionally equal the listings.” 20 C.F.R. § 416.926a(a). 18 In determining whether the severe impairment functionally equals a Listing, the ALJ must 19 assess the claimant’s functioning in six “domains.” The “domains” are broad areas of functioning 20 that are “intended to capture all of what a child can or cannot do.” 20 C.F.R. § 416.926a(b)(1). The 21 six domains are: (1) acquiring and using information; (2) attending and completing tasks; 22 (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for 23 yourself; and (6) health and physical well-being. Id. To “functionally equal” the listings, the 24 impairment must result in “marked” limitations in two domains or an “extreme” limitation in one 25 domain. Id., § 416.926a(a), (d). In making this assessment, the ALJ looks at “how appropriately, 26 effectively, and independently” the claimant preforms their activities “compared to the performance 27 of other children [the claimant’s] age who do not have impairments.” Id., § 416.926a(b). In each 28 domain, the regulations provide “age group descriptors” summarizing the typical functioning of 1 children in each group. The age groups include preschool children (age 3 to attainment of age 6), 2 school-age children (age 6 to attainment of age 12), and adolescents (age 12 to attainment of age 3 18). See, e.g., id., § 416.926a(h). 4 A minor has a “marked” limitation in a domain if their impairment “interferes seriously” 5 with their “ability to independently initiate, sustain, or complete activities.” 20 C.F.R. 6 § 416.926a(e)(2)(i). The regulations also provide that “marked” limitations means a limitation that 7 is “more than moderate” but “less than extreme.” Id. However, “extreme” limitation does not mean 8 a “total lack or loss of ability to function.” 20 C.F.R. § 416.926a(e)(3)(i). 9 The claimant bears the burden of establishing a prima facie case of disability. Roberts v. 10 Shalala, 66 F.3d 179, 182 (9th Cir. 1995); see 20 C.F.R. § 416.912(a) (“In general, you have to 11 prove to us that you are blind or disabled”). This burden requires a showing that the minor has an 12 impairment listed in the regulations, and that they have met the duration requirement. See 20 C.F.R. 13 §§ 416.924(a), 416.924(d)(2). 14 V. THE ALJ’S DECISION 15 The ALJ conducted the three-step childhood disability analysis set forth in 20 C.F.R. 16 § 416.924. (AR 16–23.) The ALJ noted that R.A.B. was “a school-age child” on February 8, 2018, 17 the date the application was filed, is “currently a school-age child,” and that he had not engaged in 18 substantial gainful activity since the application date (step one). (AR 16.) At step two, the ALJ 19 found that R.A.B. had the severe impairments of ADHD; oppositional defiant disorder (ODD); 20 adjustment disorder with mixed disturbance of emotions and conduct; and borderline intellectual 21 functioning. (AR 16.) The ALJ further found that R.A.B. had no impairment or combination of 22 impairments that met, medically equaled, or functionally equaled the severity of the Listings, in that 23 they resulted in either marked limitations in two domains of functioning or extreme limitation in one 24 domain of functioning (step three). (AR 16–22.) In reaching this finding, the ALJ considered the 25 relevant medical evidence and opinions, Plaintiff’s and R.A.B.’s hearing testimony, and school 26 records. (AR 17–22.) Although the ALJ recognized that R.A.B.’s impairments “could reasonably 27 be expected to produce the alleged symptoms[,]” they rejected the subjective testimony in the record 28 as “not entirely consistent with the medical evidence and other evidence in the record.” (AR 18.) 1 The ALJ considered R.A.B.’s functioning in terms of six domains, including (1) acquiring and using 2 information, (2) attending and completing tasks, (3) interacting and relating with others, (4) moving 3 about and manipulating objects, (5) caring for himself, and (6) health and physical well-being. (AR 4 17–22.) The ALJ concluded that R.A.B. was not disabled. (AR 22.) 5 VI. DISCUSSION 6 Plaintiff contends the ALJ erred by finding that R.A.B. had less than a marked limitation in 7 the domain of attending and completing tasks. (Doc. 18 at 10–14.) Plaintiff further asserts that the 8 ALJ improperly failed to consider whether R.A.B. was entitled to a “closed period” of disability. 9 (Id. at 14–15.) The Acting Commissioner responds that substantial evidence supports the ALJ’s 10 assessed functional limitations and R.A.B. was not eligible for a closed period of benefits. (Doc. 19 11 at 6–12.) The Court addresses the parties’ contentions below, and finds that reversal is not 12 warranted. 13 A. Substantial Evidence Supports the ALJ’s Finding that R.A.B. Had Less Than a Marked Limitation as to the Domain of Attending and Completing Tasks 14 1. Legal Standard 15 16 The ALJ is responsible for determining functional equivalence after consideration of all the 17 evidence submitted. 20 C.F.R. § 416.926a(n). The regulations list the information and factors that 18 will be considered in evaluating whether a child’s impairment functionally equals a Listing. Id., 19 §§ 416.926a, 416.924a. In making this determination, the Commissioner considers information 20 from medical sources as well as nonmedical sources, such as observations of school personnel and 21 teachers, to determine how the child is functioning at school on a day-to-day basis compared to other 22 children of the same age who do not have impairments. See 20 C.F.R. §§ 416.924a(a)(2)(iii); 23 416.926a(e)(4)(ii). 24 In the domain of “attending and completing tasks,” the ALJ assesses how well the child can 25 focus and maintain attention, and how well the child can begin, carry through, and finish activities, 26 including the pace at which the child performs activities and the ease of changing activities. 20 27 C.F.R. § 416.926a(h). Claimants may be limited in attending and completing tasks if they are 28 (1) easily startled, distracted, or overreactive to sounds, sights, movements, or touch; (2) slow to 1 focus on, or fail to complete activities of interest; (3) repeatedly sidetracked from activities or 2 frequently interrupt others; (4) easily frustrated and give up on tasks, including ones they are capable 3 of completing; and (5) require extra supervision to stay engaged in an activity. Id., 4 § 416.926a(h)(3)(i)–(v). The regulations summarize the typical functioning of school-age children 5 with regard to this domain as follows: 6 When you are of school age, you should be able to focus your attention in a variety of situations in order to follow directions, remember and organize your school 7 materials, and complete classroom and homework assignments. You should be able to concentrate on details and not make careless mistakes in your work (beyond what 8 would be expected in other children your age who do not have impairments). You 9 should be able to change your activities or routines without distracting yourself or others, and stay on task and in place when appropriate. You should be able to sustain 10 your attention well enough to participate in group sports, read by yourself, and complete family chores. You should also be able to complete a transition task (e.g., 11 be ready for the school bus, change clothes after gym, change classrooms) without extra reminders and accommodation. 12 13 20 C.F.R. § 416.926a(h)(iv). 14 2. Analysis 15 Here, the ALJ set forth their findings as to six domains in the following manner: 16 I find that the claimant has: • less than a marked limitation in acquiring and using information; 17 • less than a marked limitation in attending and completing tasks; • a marked limitation in interacting and relating with others; 18 • no limitation in moving about and manipulating objects; 19 • less than a marked limitation in the ability to care for himself/herself; and • no limitation in health and physical well-being. 20 21 (AR 17.) The ALJ then summarized the relevant medical evidence (AR 18–22) and concluded as 22 follows: 23 Overall, the record does not support a finding of marked limitations in any domain besides interacting and relating with others. Educational records do reflect that the 24 claimant is below grade-level in some subjects, but is near expectation in most areas (Ex. 10E, 22E, 27E). The claimant is not in special education and records reflect 25 that when adhering to his medication regimen he is better able to remain on task. Therapy sessions do reflect some fidgetiness, but that the claimant is consistently 26 able to remain focused and engaged in sessions. 27 (AR 22.) 28 As a preliminary matter, Plaintiff contends the ALJ erred by failing to discuss the specific 1 elements of the domain of attending and completing tasks. (See Doc. 18 at 11–12.) Plaintiff asserts 2 that the ALJ’s analysis is inadequate because the ALJ merely recited the evidence and concluded 3 that the overall record did not support a finding of marked limitations in any domain besides 4 interacting and relating to others. (Id. at 11.) Plaintiff, however, “offers no case law to support [her] 5 argument that the ALJ was required to specifically discuss every individual component of [their] 6 evaluation of this domain.” Bryan ex rel. T.R.J. v. Colvin, No. 14–CV–5043–FVS, 2015 WL 7 4644316, at *8 (E.D. Wash. Aug. 4, 2015). 8 The ALJ’s decision also makes clear that the ALJ did more than merely recite the record 9 evidence and conclude that the evidence did not support a finding of marked limitations in any 10 domain besides interacting and relating to others. In setting forth the finding as to the six domains, 11 the ALJ specifically explained that R.A.B. was better able to remain on task when adhering to his 12 medication regimen (AR 22), and Plaintiff agrees that there was improvement after R.A.B. began 13 taking medication (see Doc. 18 at 12–14). Indeed, the ALJ’s summary of the medical evidence 14 preceding this finding reflects improvement of R.A.B.’s symptoms with medication. The nature of 15 the ALJ’s responsibility is to interpret the evidence of record, including medical evidence. Andrews 16 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). For example, R.A.B.’s third grade teacher, Ms. 17 Washington, indicated on her assessment that when Plaintiff is not taking his medications, he very 18 often has difficulty paying attention to tasks or play activities, is easily distracted by other things, 19 and has difficulty remaining seated when asked to do so, and he often has difficulty following 20 through with instructions and finishing things, blurts out answers to questions before they have been 21 completed, and has difficulty awaiting his turn in group activities. (AR 297–98.) Another teacher 22 noted there was improvement as to R.A.B.’s focus and physical behavior issues when he began 23 taking medication. (AR 678.) “[A] failure to take medications consistently can explain a failure of 24 functioning and warrant a conclusion that the claimant is not disabled.” Trayvaughan P. v. Astrue, 25 No. 1:08–cv–01774–SMS, 2009 WL 2513481, at *8 (E.D. Cal. Aug. 17, 2009). 26 Likewise, progress notes repeatedly indicated that R.A.B.’s ability to focus and stay on task 27 improved with medication. (See, e.g., AR 683, 697, 706, 723, 737, 767, 779, 787, 795.) “Generally, 28 an impairment that can reasonably be controlled by medication cannot serve as a basis for finding a 1 disability.” Trayvaughan P., 2009 WL 2513481, at *8; see also Warre v. Comm’r, 439 F.3d 1001, 2 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not 3 disabling for the purpose of determining eligibility for SSI benefits.”); Odle v. Heckler, 707 F.2d 4 439, 440 (9th Cir. 1983) (affirming denial of benefits and noting that claimant’s impairments were 5 responsive to treatment with medication). 6 Furthermore, both consultive examiners opined that R.A.B. generally had minimal functional 7 limitations. In May 2018, Dr. Swanson found that R.A.B. fell within the average range of intellectual 8 ability and his WISC-IV results indicated he could be expected to perform academically at a level 9 that was consistent with same-aged peers. (AR 526–27.) Dr. Swanson also opined that R.A.B. 10 appeared to have the ability to communicate by understanding, initiating, and using language and to 11 respond to stimuli in a mostly age-appropriate manner. (AR 528.) Dr. Swanson assessed R.A.B. 12 again in December 2019 and found that R.A.B. fell within the borderline range of intellectual 13 functioning. (AR 593–94.) Dr. Swanson determined that R.A.B.’s WISC-V results reflected he 14 could be expected to perform academically at a level that is somewhat lower than same-aged peers. 15 (AR 594.) In December 2019, Dr. Siekerkotte also indicated that R.A.B. was doing well in regular 16 education, and opined that R.A.B. had no limitations as to acquiring and using information, attending 17 and completing tasks, moving about and manipulating objects, and self-care. (AR 599, 601–02.) 18 Though the ALJ found the opinions of both consultive examiners to be “persuasive” (which 19 Plaintiff does not challenge), the ALJ still assessed a more restrictive functional limitation than those 20 opined by the consultative examiners by finding less than a marked limitation in attending and 21 completing tasks. (See AR 17, 22.) In evaluating R.A.B.’s functional equivalence at step three, the 22 ALJ, as they are charged to do, interpreted and weighed the evidence in conjunction with other 23 longitudinal evidence in the record, such as consistent evidence showing that R.A.B.’s symptoms 24 were effectively controlled with medication. See, e.g., Trayvaughan P., 2009 WL 2513481, at *8 25 (“considering Plaintiff's ability to function in the educational context in which his impairment 26 manifested limitations, and in light of the woeful absence of treatment and admitted lack of 27 consistent medication, the record was such that it was up to the ALJ to engage in the initial weighing 28 of the evidence, assessment of the importance and frequency of the limitations and activities, 1 consideration of the effect of medication and treatment and the lack thereof, and evaluation of the 2 relative weight of other conditions and factors.”). In doing so, the ALJ proceeded according to 3 correct legal standards and arrived at conclusions supported by substantial evidence. Id.; see, e.g., 4 Martinez on behalf of RJK III v. Berryhill, No. 17-cv-01233-EDL, 2018 WL 1989557, at *8 (N.D. 5 Cal. Feb. 26, 2018) (relying on evidence in the record and opinions from state agency reviewing 6 doctors to find that plaintiff had less than marked limitations in the domain of attending and 7 completing tasks). 8 Plaintiff further contends that the ALJ improperly rejected the statements of R.A.B.’s third 9 grade teacher, Ms. Washington, without offering any legally sufficient reasons. (Doc. 18 at 15.) 10 Though the regulations provide that the ALJ considers information from nonmedical sources, such 11 as observations of school personnel and teachers, to determine whether a child’s impairment 12 functionally equals a Listing, 20 C.F.R. §§ 416.924a(a)(2)(iii); 416.926a(e)(4)(ii), the ALJ is not 13 required to give such information “the same weight as information from an acceptable medical 14 source.” Vasquez ex rel. S.R.A. v. Astrue, EDCV 08–00449 AJW, 2009 WL 1444728, at *6 (C.D. 15 Cal. May 19, 2009) (citing Gomez v. Chater, 74 F.3d 967, 970–971 (9th Cir. 1996) (holding that the 16 regulations permit the Commissioner to give “less weight” to opinions from “other sources”)). 17 Moreover, an ALJ need not necessarily articulate the reasons to discount lay witness 18 statements under the revised regulations. McNabb v. Comm’r of Soc. Sec., No. 1:22-cv-01055-EPG, 19 2023 WL 4087639, at *6 (E.D. Cal. June 20, 2023) (citing Fryer v. Kijakazi, No. 21-36004, 2022 20 WL 17958630, at *3 n.1 (9th Cir. Dec. 27, 2022) (“It is an open question whether ALJs are still 21 required to consider lay witness evidence under the revised regulations, although it is clear they are 22 no longer required to articulate it in their decisions.”)); Neri v. Comm’r of Soc. Sec., No. 1:21-cv- 23 01235-SAB, 2022 WL 16856160, at *7 (E.D. Cal. Nov. 10, 2022) (opining that, under the revised 24 regulations, an ALJ must consider, but not necessarily articulate how, the ALJ considered lay 25 testimony, and concluding that, in any event, the result would be the same if the germane-reasons 26 standard applied). 27 Ultimately, the Court need not resolve this dispute. The ALJ evaluated Ms. Washington’s 28 assessment in conjunction with the other evidence in the record and concluded that R.A.B. had less 1 than a marked limitation in the domain of attending and completing tasks. The ALJ “was not obliged 2 to adopt [Ms. Washington’s] assessment of the functional severity of [R.A.B.’s] impairments in each 3 domain.” Vasquez ex rel. S.R.A., 2009 WL 1444728, at *7. Where the ALJ’s assessment of the 4 degree of functional impairment differed from that suggested by Ms. Washington, as discussed 5 above, the ALJ supported the conclusions with substantial evidence in the record, including evidence 6 that R.A.B.’s symptoms were effectively treated with medical and the opinions of the two consultive 7 examiners. Id.; see also Norman ex rel. M.K. v. Colvin, CV–12–3085–FVS, 2013 WL 5724138, at 8 *6 (E.D. Wash. Oct. 21, 2013) (finding substantial evidence supported the ALJ’s decision that the 9 claimant suffered only a less than marked limitation in the domain of attending and completing tasks 10 where the teacher’s opinion stood in contrast to other relevant evidence in the record). 11 To the extent Plaintiff is advocating for an alternative interpretation of the evidence in the 12 record, the Court will not second guess the ALJ’s reasonable interpretation, even if such evidence 13 could give rise to inferences more favorable to Plaintiff. See Molina v. Astrue, 674 F.3d 1104, 1110 14 (9th Cir. 2012). To do as Plaintiff asks would require the Court to independently weigh the evidence, 15 thereby substituting its judgment for that of the ALJ. This it cannot do. See Ahearn v. Saul, 988 16 F.3d 1111, 1115 (9th Cir. 2021) (“We may not reweigh the evidence or substitute our judgment for 17 that of the ALJ.”). 18 In sum, the Court finds that substantial evidence supports the ALJ’s finding that R.A.B. had 19 less than a marked limitation in attending and completing tasks. Plaintiff may disagree with this 20 conclusion, but the Court must nevertheless uphold the ALJ’s determination because it is a rational 21 interpretation of the evidence. See Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020) (“Our review 22 of an ALJ’s fact-finding for substantial evidence is deferential”); Thomas v. Barnhart, 278 F.3d 947, 23 954 (9th Cir. 2002). 24 B. The ALJ Did Not Err By Not Considering Whether R.A.B. Was Entitled to a Closed Period of Disability 25 26 Plaintiff contends that the ALJ erred by failing to consider whether R.A.B. was entitled to a 27 “closed period” of disability as to the time period from February 2016 to December 2018. (Doc. 18 28 at 14–15.) Plaintiff emphasizes that the assessment by R.A.B.’s third grade teacher, Ms. 1 Washington, falls within this time period. (Id.) 2 As explained above, the ALJ appropriately evaluated Ms. Washington’s assessment along 3 with the other evidence in the record and arrived at a nondisability finding supported by substantial 4 evidence. See Gonzales v. Colvin, No. 1:13–cv–01976–SKO, 2015 WL 1020987, at *7 (E.D. Cal. 5 Mar. 9, 2015) (declining to consider plaintiff’s contingent argument that the ALJ should have 6 credited an opinion as to plaintiff’s functional limitations, and thus, plaintiff would have been 7 entitled to a closed period of disability, because the Court found that the opinion was properly 8 considered by the ALJ). 9 Moreover, even if the Court were to consider a closed period of disability from February 10 2016 to December 2018, the Court finds that substantial evidence from this period supports the 11 ALJ’s determination that R.A.B. was not disabled within the meaning of the Act during that time 12 frame. The Act provides that a claimant’s impairment or impairments must “result[] in marked and 13 severe functional limitations, and which can be expected to result in death or which has lasted or 14 can be expected to last for a continuous period of not less than 12 months.” Merrill ex rel. Merrill, 15 224 F.3d at 1085 (quoting 42 U.S.C. § 1382c(a)(3)(C)(i)). To obtain an closed period of disability, 16 the evidence must show that (1) the claimant could not engage in substantial gainful activity for a 17 continuous period of twelve months; (2) the disability ceased by the time of adjudication; and (3) the 18 claimant met all the other eligibility requirements for benefits. See 20 C.F.R. §§ 404.1505(a), 19 416.905(a); Broers v. Berryhill, No. 1:16–cv–00202–SKO, 2017 WL 1427025, at *10 (E.D. Cal. 20 Apr. 21, 2017); see, e.g., Roberts, 66 F.3d at 182 (affirming the ALJ’s finding that claimant was not 21 disabled due to obesity where claimant failed to carry her burden of showing she met the duration 22 requirement). 23 Here, the evidence fails to demonstrate that R.A.B. had disabling limitations as a result of 24 his impairments from February 2016 to December 2018. See Little v. Berryhill, No. 1:16-cv-00846- 25 SKO, 2017 WL 3601494, at *8 (E.D. Cal. Aug. 22, 2017). As discussed above, the ALJ sufficiently 26 addressed the evidence from this alleged closed period in their decision and reached a reasonable 27 determination that the evidence did not warrant a finding that R.A.B. was disabled. For example, 28 in April 2016, R.A.B.’s teacher indicated there was improvement as to his focus and physical 1 behavior issues when he began taking medication. (AR 678.) School records around this time noted 2 that though R.A.B.’s reading was slightly below grade level, he was “right where he should [be] 3 academically.” (AR 678.) R.A.B. and Plaintiff attended a consultive psychological examination 4 with Dr. Swanson in May 2018, who found that R.A.B. fell within the average range of intellectual 5 ability. (AR 526–27.) Dr. Swanson determined that R.A.B.’s WISC-IV results indicated he could 6 be expected to perform academically at a level that was consistent with same-aged peers, and that 7 R.A.B. had the abilities to behave in a mostly age appropriate manner. (AR 527–28.) And, progress 8 notes during this time period repeatedly indicated that R.A.B.’s ability to focus and stay on task 9 improved with medication. (See, e.g., AR 683, 697, 706, 723, 795.) 10 The foregoing evidence fails to demonstrate that R.A.B. had disabling limitations for a 11 period of twelve months or greater within the limited time frame that Plaintiff requests the ALJ be 12 ordered to reconsider. See Felton v. Colvin, No. 2:15-cv-2315-CKD, 2016 WL 6803680, at *5 (E.D. 13 Cal. Nov. 17, 2016). Accordingly, because the ALJ’s evaluation of the evidence and findings that 14 R.A.B. did not suffer an impairment for a continuous period of twelve months is supported by 15 substantial evidence, it was not error for the ALJ to not consider R.A.B.’s eligibility for a closed 16 period of disability. Little, 2017 WL 3601494, at *9; see, e.g., Felton, 2016 WL 6803680, at *5 17 (“The ALJ carefully and fully addressed this evidence in [their] decision and reached a reasonable 18 determination that it did not warrant a finding that plaintiff was disabled, not only during the closed 19 period plaintiff now contests, but throughout the entire course of the relevant period.”); accord Laib 20 v. Astrue, No. CV–09–0142–CI, 2010 WL 2218294, at *5 (E.D. Wash. May 26, 2010); see also 21 Rosales v. Colvin, No. CV–12–1550–PHX–GMS, 2013 WL 1410387, at *4–5 (D. Ariz. Apr. 8, 22 2013) (finding the ALJ did not err in failing to consider a closed period of disability where the 23 evidence in the record did not support a conclusion that plaintiff was disabled during the alleged 24 closed period). 25 I. CONCLUSION AND ORDER 26 After consideration of Plaintiff’s and the Acting Commissioner’s briefs and a thorough review 27 of the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 28 1 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 2 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 3 IT IS SO ORDERED. 4
5 Dated: September 20, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6
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