Curry v. Saul, No. 1:2019cv03263 - Document 14 (E.D. Wash. 2020)
Court Description: ORDER GRANTING 12 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 11 Plaintiff's Motion for Summary Judgment. The Decision of the Commissioner is AFFIRMED. FILE CLOSED. Signed by Judge Stanley A Bastian. (TR, Case Administrator)
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Curry v. Saul Doc. 14 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.527 Page 1 of 15 1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 5 Jul 20, 2020 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 8 9 10 TIFFANY C. O/B/O LCC, A MINOR No. 1:19-CV-03263-SAB 11 CHILD, 12 Plaintiff, ORDER GRANTING 13 v. DEFENDANT’S MOTION FOR 14 COMMISSIONER OF SOCIAL SUMMARY JUDGMENT 15 SECURITY, Defendant. 16 17 Before the Court are the parties’ Cross-Motions for Summary Judgment, 18 ECF Nos. 11 and 12. The motions were heard without oral argument. Plaintiff is 19 represented by D. James Tree. Defendant is represented by Lars Nelson and 20 Timothy Durkin. For the reasons set forth below, the Court grants Defendant’s 21 motion for summary judgment and denies Plaintiff’s motion for summary 22 judgment. 23 24 BACKGROUND On June 29, 2016, Plaintiff filed an application for S.S.I. on behalf of her 25 minor child, LCC, with an alleged disability onset date of March 30, 2016. Plaintiff 26 initially listed the minor child’s disabilities as attention deficit hyperactivity 27 disorder (ADHD) and oppositional defiance disorder. Subsequent appeal 28 documents state the child also suffers from anxiety as well, which causes diarrhea ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.528 Page 2 of 15 1 and headaches. Plaintiff’s claim was denied initially on December 8, 2016 and 2 upon reconsideration on March 20, 2017. Plaintiff then requested a hearing before 3 an Administrative Law Judge (ALJ). 4 Plaintiff appeared before an ALJ on July 30, 2017, in Yakima Washington. 5 Plaintiff and LCC testified, as well as a State appointed psychological expert, Dr. 6 Rozenfeld. On September 24, 2018, the ALJ issued a decision finding LCC was 7 not disabled. AR 18. The Appeals Council declined to review the ALJ’s decision 8 on September 11, 2019. AR 1 9 Plaintiff filed a timely appeal to the United States District Court for the 10 Eastern District of Washington on November 7, 2019. ECF No. 1. This matter is 11 before this Court under 42 U.S.C. § 1383(c)(3). 12 SEQUENTIAL EVALUATION PROCESS 13 To qualify for disability benefits, a child under the age of eighteen must 14 have “a medically determinable physical or mental impairment, which results in 15 marked and severe functional limitations, and which can be expected to result in 16 death or which has lasted or can be expected to last for a continuous period of not 17 less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). The Social Security 18 Administration has enacted a three-step analysis to determine whether a child is 19 eligible for SSI benefits because of a disability. 20 C.F.R. § 416.924(a). First, the 20 ALJ considers whether the child is engaged in “substantial gainful activity.” Id., at 21 § 416.924(b). Second, the ALJ considers whether the child has a “medically 22 determinable impairment that is severe,” which is defined as an impairment that 23 causes “more than minimal functional limitations.” Id. at § 416.924(c). Third, if the 24 ALJ finds a severe impairment, he or she must then consider whether the 25 impairment “medically equals” or “functionally equals” a disability listed in the 26 regulatory “Listing of Impairments.” Id. at § 416.924(c)(d). At this step, if the 27 impairment does not meet the duration requirement (a continuous period not less 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.529 Page 3 of 15 1 than twelve months), or does not meet or medically equal, or functionally equal 2 any of the listing impairments, then the child is not disabled. Id. 3 To meet or medically equal a listing, the child’s severe impairment has to 4 meet or medically equal the severity of a set of criteria for an impairment in the 5 listings. Id. Even if an impairment does not meet or medically equal a listing, the 6 claimant may be disabled if his or her impairment is functionally equivalent to a 7 listed impairment. Id. Functional equivalence is measured by assessing the 8 claimant’s abilities in six functional domains, which are “broad areas of 9 functioning intended to capture all of what a child can or cannot do.” Id. The 10 functional Domains are: (1) acquiring and using information; (2) attending and 11 completing tasks; (3) interacting and relating with others; (4) moving about and 12 manipulating objects; (5) caring for oneself, and (6) his/her general health and 13 physical well-being. 20 C.F.R. § 416.926a(b)(1)(i-vi). An impairment is 14 functionally equivalent to a listed impairment if it results in extreme limitations in 15 one functional Domain or marked limitations in two functional Domains. 20 C.F.R. 16 § 416.926a(d). An “extreme limitation” is defined as a limitation that “interferes 17 very seriously with [a person's] ability to independently initiate, sustain, or 18 complete activities.” 20 C.F.R. § 416.926a(e)(3). An impairment is a “marked 19 limitation” if it “seriously interferes with [a person's] ability to independently 20 initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2). 21 In making this assessment, the ALJ must compare how appropriately, 22 effectively, and independently the child preforms activities compared to the 23 performance of children of the same age who do not have impairments. 20 C.F.R. 24 § 416.926a(d). STATEMENT OF FACTS 25 26 The facts have been presented in the administrative hearing transcript, the 27 ALJ’s decision, and the briefs of the parties. Therefore, only the most relevant 28 facts are summarized here. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.530 Page 4 of 15 At the time of the hearing in 2018, the child, LCC, was ten years old and had 1 2 just completed the fourth grade. LCC lives with his mother and siblings in Yakima, 3 Washington. LCC suffers from attention-deficit and hyperactivity disorder 4 (ADHD), unspecified anxiety disorder, and oppositional defiance disorder (ODD). 5 In 2016, LCC’s second grade teacher described his as very happy, full of energy 6 and a great student. AR 278. In 2017, his third-grade teacher described him as 7 bright, above grade level in many academic areas, and a great student when he is 8 on his medication. AR 226-232. LCC started counseling in 2016 to deal with his hyperactivity, 9 10 noncompliance, and physical aggressions at both home and school. LCC was also 11 prescribed Ritalin to help with his ADHD symptoms. The medication helped LCC 12 manage his symptoms, and he reported doing better at home and in school. AR 13 298. He told his doctor in May 2016 that his medication was helping, and he was 14 calmer and getting more work done. Id. Plaintiff stated she has been working with 15 LCC’s doctor to find the right dosage. They added a dose in the afternoon, which 16 worked well. When LCC was “goofing off” at soccer practice, Plaintiff gave him 17 an extra dose before practice, which also worked well. In 2017, LCC reported increased anxiety and reported having headaches and 18 19 stomachaches because of his anxiety. He was given anxiety medication and was 20 participating in counseling and both of these helped him to manage his anxiety, as 21 well as reduced the frequency of the headaches and stomachaches. LCC told his 22 doctor in September 2017 that his headaches had reduced to “one tiny one about 23 once a week.” AR 394. However, LCC did have some behavioral problems in both 24 February and November of 2017, as well as 2 disciplinary reports in school during 25 2018. 26 LCC also struggles with weight issues, which he struggled with before 27 starting his medication. He has measured in the first and third percentile in weight. 28 Appetite loss is a side-effect of the Ritalin, which adds to LCC’s weight issues. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.531 Page 5 of 15 1 Because of this, Plaintiff tries to work LCC’s medication schedule around 2 breakfast and lunch, and she limits the amount of medication LCC takes in the 3 summer. Also, LCC takes a nutritional supplement, Pediasure, to gain weight, 4 which has helped him maintain his weight. THE ALJ’S FINDINGS 5 6 At step one, the ALJ found LLC had not engaged in “substantial gainful 7 activity” since the application date of June 29, 2016. AR 18. 8 At step two, the ALJ found LLC had the following severe impairments: 9 ADHD; unspecified anxiety disorder; oppositional defiance disorder. AR 18. 10 At step three, the ALJ found LLC’s impairments, alone or in combination, 11 did not meet or medically equal one of the listed impairments. The ALJ paid 12 special attention to listings 112.06 for anxiety and obsessive-compulsive disorders, 13 112.08 for personality and impulse control disorders, and 112.11 for 14 neurodevelopmental disorders. AR 18. 15 For the functional equivalence analysis, the ALJ concluded LCC’s 16 impairments, alone or in combination, did not functionally equal the severity of the 17 listings. He found: (1) in Domain one for acquiring and using information LCC 18 had no limitation, (2) in Domain two for attending and completing tasks LCC had a 19 less than marked limitation, (3) in Domain three for interacting and relating with 20 others LCC had a less than marked limitation, (4) in Domain four for moving about 21 and manipulating objects LCC had no limitation, (5) in Domain five for caring for 22 yourself LCC had a less than marked limitation, and (6) in Domain six for health 23 and physical well-being LCC had a less than marked limitation. The ALJ 24 concluded LLC was not disabled within the meaning of the Social Securities Act. 25 AR 26-31. 26 27 STANDARD OF REVIEW The ALJ’s determination is reviewed de novo, but deference is owed to any 28 reasonable construction of applicable statutes. McNatt v. Apfel, 201 F.3d 1084, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.532 Page 6 of 15 1 1087 (9th Cir. 2000). The ALJ resolves any conflicts in the medical testimony and 2 resolves any ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 3 The ALJ’s decision will only be reversed if it is based on legal error, or it is not 4 supported by substantial evidence in the record. Tackett v. Apfel, 180 F.3d 1094, 5 1097 (9th Cir. 1999). Substantial evidence is “more than a scintilla,” but less than a 6 preponderance. Andrews, 53 F.3d at 1039. In other words, it is relevant evidence “a 7 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 8 Perales, 402 U.S. 389, 401 (1971). If the evidence supports more than one 9 rationale interpretation, the Court must uphold the ALJ’s determination should one 10 of those interpretations support the ALJ’s decision. Tommasetti v. Astrue, 533 F.3d 11 1035, 1038 (9th Cir. 2008). 12 A decision supported by substantial evidence will be set aside if the proper 13 legal standards were not applied in weighting the evidence or making the 14 determination. Brawner v. Sec'y of Health & Human Servs., 839 F.2d 432, 433 (9th 15 Cir. 1988). The ALJ’s decision will be upheld if its decision is based on an 16 inconsequential error, so long as the errors are immaterial to the ultimate 17 assessment of disability. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 18 (9th Cir. 2006). 19 ISSUES FOR REVIEW 20 (1) Whether the ALJ properly assessed the opinion evidence at Step Three. 21 (2) Whether the ALJ properly assessed the listings or functional Domains. 22 23 24 DISCUSSION (1) The ALJ Properly Assessed the Opinion Evidence. Plaintiff argues the ALJ failed to properly assess the opinion evidence in this 25 case. First, the ALJ failed to properly assess the opinion evidence of LCC’s 26 treating physician, Dr. Worley. Second, the ALJ erred because it did not properly 27 consider Plaintiff’s favorable lay testimony. 28 A. The ALJ’s Assessment of the Treating Physician ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 1:19-cv-03263-SAB 1 ECF No. 14 filed 07/20/20 PageID.533 Page 7 of 15 When assessing the evidence, the ALJ cannot reject the treating doctor’s 2 opinions unless it is contradicted by another doctor, and the ALJ must provide 3 “specific, clear, and convincing evidence” for why it rejects the treating physicians 4 opinions. Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). An ALJ errs 5 when he or she rejects a medical opinion “while doing nothing more than ignoring 6 it [or] asserting without explanation that another medical opinion is more 7 persuasive.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014). The ALJ’s 8 rejection of treating physician can be supported by substantial evidence where it is 9 consistent with other experts’ written reports and the claimant’s own testimony. 10 See Andrews, 53 F.3d at 1043. 11 Here, the ALJ rejected Dr. Worley’s assessment of LCC in Domains three 12 and five. Dr. Worley evaluated LCC as marked in these Domains while the ALJ 13 found LCC to be less than marked in these Domains. Plaintiff contends the ALJ 14 failed to provide adequate reasons for rejecting Dr. Worley’s assessment of 15 Plaintiff in Domains three and five. 16 The ALJ noted Dr. Worley’s opinions for these Domains were contradicted 17 by four other doctors, one of whom was subject to cross-examination, Dr. 18 Rozenfeld. The three doctors not subject to cross-examination were the non19 examining State agency medical and psychological consultant, Drs. Beaty and 20 Wolfe, who reviewed the record initially, and a State agency psychological 21 consultant, Dr. Postrovoit, who reviewed the record upon reconsideration. These 22 four doctors all had similar, yet slightly differing opinions on LCC’s levels in the 23 Domains. However, they all agreed LCC was, at most, less than marked in any of 24 the six categories. The ALJ relied on this in rejecting Dr. Worley’s opinions. AR 25 23-25. Additionally, the ALJ noted the child’s unremarkable mental examination, 26 as well as the treatment notes describing the child as being calm, cooperative, and 27 able to engage, all showed the child’s disabilities were inconsistent with the 28 alleged behavioral and mental issues. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.534 Page 8 of 15 The ALJ gave great weight to Dr. Rozenfeld, a psychological medical expert 1 2 who testified at the hearing. Plaintiff argues this was an error because Dr. Worley 3 deserved controlling weight as the treating physician. As an expert, the ALJ noted 4 that Dr. Rozenfeld understands the Social Security disabilities program and gave a 5 thorough explanation of her opinions. AR 23-24. Dr. Rozenfeld testified she did 6 not disagree with Dr. Worley’s analysis of the child but did disagree with Dr. 7 Worley’s ratings for the Domain five. AR 69-70. This is because when LCC is off 8 his medication, even though his impairments increase, these increases do not last 9 long enough under the requirements for LCC to be at a marked level. The ALJ’s assessment of Dr. Worley’s opinion is supported by substantial 10 11 evidence in the record. Accordingly, the Court finds no error. 12 B. The ALJ’s assessment of Plaintiff’s Testimony. 13 When discounting lay testimony, the ALJ must give germane reasons for 14 why he chose to discount it. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 15 The ALJ cannot reject a lay person’s subjective complaints solely based on lack of 16 objective medical evidence to corroborate the alleged symptoms. Rollins v. 17 Massanari, 261 F.3d 853, 856 (9th Cir. 2001). However, “objective medical 18 evidence is still a relevant factor in determining the severity of the claimant’s pain 19 and disabling effects.” Id. at 857. Plaintiff asserts the ALJ erred by failing to 20 properly consider her lay testimony. The ALJ gave only partial weight to Plaintiff’s statements because he did 21 22 not find them persuasive “for the same reasons set forth above, in finding the 23 allegations are not entirely consistent with the objective findings or the claimant’s 24 good response to treatment.” (Tr. 25). These reasons include the opinions of four 25 doctors, statements from LCC’s teacher, as well as objective findings in the record. 26 The ALJ’s assessment of Plaintiff’s testimony is supported by substantial evidence 27 in the record. Therefore, the Court finds no error. 28 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.535 Page 9 of 15 1 (2) The ALJ Properly Assessed the Listings. 2 At Step Three of a child disability assessment, the ALJ must determine if the 3 child’s severe impairment meets, medically equals, or functionally equals the 4 listings. 20 C.F.R. § 416.924. To meet or medically equal a listing, the child must 5 meet or medically equal the severity of a set of criteria for an impairment in the 6 listings. Id. 7 A claimant must present symptoms, signs or laboratory findings “at least 8 equal in severity and duration” to the listed impairment.” 20 C.F.R 9 §§404.1525(c)(3), 416.925(c)(3). To qualify for benefits by showing a combination 10 or impairments is equivalent to a listed impairment, the claimant “must present 11 medical findings equal in severity to all the criteria for the one most similar listed 12 impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in original). 13 Plaintiff alleges the ALJ erred in failing to assess LCC under either Listing 105.08 14 or Listing 111.02B. 15 16 (A) Listing 105.08: Growth Failure Due to Any Digestive Disorder To medically meet a Listing 105.08 impairment, the child must have: (1) a 17 chronic nutritional deficiency present on at least two evaluations at least 60 days 18 apart within a consecutive 12-month period, which is documented by either anemia 19 or serum albumin deficiency; and (2) a growth failure demonstrated by BMI 20 readings within a consecutive 12-month period, at least 60 days apart, that are less 21 than the third percentile on Table III or Table IV. The ALJ did not specifically 22 mention Listing 105.08 in his decision, which Plaintiff asserts was a harmful error. 23 LCC did not meet the criteria for this requirement. There is no evidence in 24 the record showing LCC suffers from either anemia or a deficiency in his serum 25 album levels, which is a requirement. Also, his three BMI measurements did not 26 read at less than the third percentile in a consecutive twelve-month period, at least 27 sixty days apart. Plaintiff does not provide or point to any evidence of a functional 28 limitation from LCC’s weight that would have impacted the ALJ’s overall ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.536 Page 10 of 15 1 disability analysis. Thus, Plaintiff has not presented any evidence that would 2 impact the ALJ’s ultimate determination of disability. Even if the ALJ should have 3 assessed LCC under Listing 105.08, LCC does not meet or medically equal the 4 requirements of this listing, making this error harmless. As such, this would not 5 have changed the ALJ’s overall assessment of disability and is inconsequential. 6 Therefore, the Court finds no reversible error. 7 (B) Listing 111.02B: Dyscognitive or Absence Seizures 8 Epilepsy is defined as a “pattern of recurrent and unprovoked seizures that 9 are manifestations of abnormal electric activity in the brain.” 20 CFR, Subpart P, 10 Appendix 1 Part B2. Plaintiff asserts the ALJ should have assessed LCC’s tension11 level headaches as dyscognitive seizures or absence seizures under Listing 12 111.02B. Dyscognitive seizures are “characterized by alteration of consciousness 13 without convulsions or loss of muscle control.” Id. Absence seizures are similar, 14 but are shorter than dyscognitive seizures, normally lasting for a few seconds 15 rather than minutes. Id. The regulation requires at least one detailed description of 16 the seizures from someone who has witnessed one, preferably a medical 17 professional. Id. To meet this listing the child must have either dyscognitive or 18 absence seizures at least once a week for at least three consecutive months despite 19 adherence to treatment. Id. The regulation also states if the child has a co-occurring 20 neurological disorder, the SSA will evaluate the child’s mental impairment under 21 Listing 112 for mental disorders body system. Id 22 Plaintiff relies on SSR 19-4p to support his argument that the ALJ should 23 have considered the Epilepsy Listing, 111.02B, in considering LCC’s headaches. 24 SSR 19-4p is used for evaluating cases involving Primary Headache Disorder. It 25 states headaches are “neurological disorder involving reoccurring pain in the head, 26 scalp or neck.” Soc. Sec. Ruling, SSR 19-4p; Titles II & Xvi: Evaluating Cases 27 Involving Primary Headache Disorders, SSR 19-4P (S.S.A. Aug. 26, 2019). 28 Primary headaches occur independently and are not caused by another medical ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.537 Page 11 of 15 1 condition, while secondary headaches are caused by another, underlying medical 2 condition. Id. SSR 19-4p lists tension -type headaches as a type of primary 3 headache. Only primary headaches can be considered medically determinable 4 impairments, not secondary headaches. Id. This is because secondary headaches 5 are symptoms of another, underlying medical condition and successful treatment of 6 the underlying condition will generally alleviate the secondary headache. 7 Tension-type headaches cause pain or discomfort in one’s head, scalp, neck, 8 face, or jaw and are normally associated with tightness in the affected areas. Id. 9 The regulation further breaks down tension-type headaches into episodic or 10 chronic. Episodic tension-type headaches can be either infrequent, which typically 11 do not require medical attention, or frequent that normally does require medical 12 attention. Id. Chronic tension-type headaches usually evolve from episodic ones. 13 Id. Plaintiff argues the ALJ erred by failing to assess LCC’s tension-level 14 headaches under the listing for epilepsy, 111.02B. 15 The ALJ noted LCC’s headaches were caused by his anxiety and “the 16 claimant reported that his medication was helping his anxiety and he was not 17 having as many headaches…” AR 31. Even if the ALJ erred in failing to assess 18 LCC under 11.02B it was harmless because LCC’s headaches are not primary 19 headaches because they are caused by his anxiety. SSR 19-4p states secondary 20 headaches are not assessed under this listing since they are normally alleviated by 21 treatment for the underlying condition. Id. LCC’s headaches were helped by his 22 anxiety treatment, which the ALJ noted. Accordingly, this Court finds no 23 reversible error. 24 25 (3) The ALJ Properly Assessed the Functional Domains. If the ALJ determines the child does not meet or medically equal a listing, it 26 must determine if the child functionally equals a listed impairment. An impairment 27 is functionally equivalent to a listed impairment if it results in extreme limitations 28 in one of the six functional Domain or marked limitations in two of the six ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.538 Page 12 of 15 1 functional Domains. 20 C.F.R. § 416.926a(d). The functional Domains are: (1) 2 acquiring and using information; (2) attending and completing tasks; (3) 3 interacting and relating with others; (4) moving about and manipulating objects; 4 (5) caring for oneself, and (6) his/her general health and physical well-being. 20 5 C.F.R. § 416.926a(b)(1)(i-vi). An “extreme limitation” is defined as a limitation that “interferes very 6 7 seriously with [a child's] ability to independently initiate, sustain, or complete 8 activities.” 20 C.F.R. § 416.926a(e)(3). An impairment is a “marked limitation” if 9 it “seriously interferes with [a child's] ability to independently initiate, sustain, or 10 complete activities.” 20 C.F.R. § 416.926a(e)(2). When looking into the functional 11 domains of the child, the ALJ must assess the child within his or her age category 12 in the context of other children in the same age range. 20 C.F.R. § 416.926a(d). 13 This assessment is meant to evaluate the “whole child” and how he or she 14 functions in all settings in order to determine how the child is limited. Title Xvi: 15 Determining Childhood Disability Under the Functional Equivalence Rule-the 16 "Whole Child" Approach, SSR 09-1P (S.S.A. Feb. 17, 2009). The ALJ found LCC had no limitation in Domains one and four. The ALJ 17 18 found LCC had a less than marked limitation in Domains two, three, five, and six. 19 Plaintiff asserts the ALJ erred in finding LCC had a less than marked limitation in 20 Domains three, five and six. 21 (A) Domain Three: Interacting and Relating with Others. 22 Domain three looks at the child’s abilities in interacting and relating with 23 others. In this evaluation, the Social Security regulations provide examples of the 24 how school-age children (children age six to age twelve) should be developing in 25 this category. Dr. Worley assessed LCC as having a marked limitation in this 26 domain. Plaintiff argues the ALJ’s rejection of the treating physician’s assessment 27 in this domain was an error, and the record did not support the ALJ’s findings. 28 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.539 Page 13 of 15 The ALJ determined LCC was less than marked in this Domain because 1 2 even though LCC did exhibit some aggressive behaviors, LCC endorsed less 3 physical interactions, used self-talk and breathing exercises to relax and avoid any 4 escalations in anger after he was placed on his medication. Further, the school 5 records show only two disciplinary reports against LCC in 2018, which is a 6 reduction from the previous year. Dr. Rozenfeld noted in her testimony some of these aggressive behaviors 7 8 can be explained by some instability in LCC’s home environment and seemed to 9 resolve themselves. AR 60. Also, the medical record shows that when medicated 10 LCC was calm, corporative, made fair eye contact, and was able to engage. The 11 ALJ relied on Dr. Rozenfeld’s assessment and rejected Dr. Worley’s opinion for 12 this domain. Dr. Rozenfeld’s assessment is also support by the assessment of Drs. 13 Beaty, Wolfe and Postrovoit, the state appointed medical and psychological 14 experts. These three other doctors agreed LCC was less than marked in this 15 domain. The ALJ’s assessment of LCC’s limitation in Domain three is supported 16 by substantial evidence in the record. Thus, the ALJ did not err in his assessment 17 of LCC in Domain three. 18 (B) Domain Five: Caring for Yourself. 19 Domain five looks to how the child cares for his or herself. In assessing 20 school age children, the regulation states the child should be independent in most 21 day to day activities but may still need reminded to do these routinely. The child 22 should also begin to understand the difference between what is right and wrong 23 and should be able to demonstrate consistent control over his or her behavior. 20 24 C.F.R. § 416.926a. Here, Plaintiff argues the record does not support the ALJ 25 determination that LCC has a less than marked limitation in this Domain; instead 26 the ALJ should have relied on the treating physician’s opinion that Plaintiff had a 27 marked limitation in this category. 28 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.540 Page 14 of 15 The ALJ’s reliance on Dr. Rosenfeld’s opinion, in contrast to Dr. Worley’s 1 2 opinion, is supported by substantial evidence in the record. Dr. Rozenfeld opined 3 he was less than marked in this Domain because any difficulties were during times 4 when his medication wears off, or periods of increase. Dr. Rozenfeld also testified 5 that while LCC struggles with anxiety, he also requested to restart therapy 6 indicating insight into his struggles and these symptoms do not last long enough to 7 meet the duration requirement. Further, the ALJ’s assessment and Dr. Rozenfeld’s 8 opinion are supported by the State agency medical and psychological consultants 9 who opined LCC had no limitation in this Domain. The ALJ’s assessment of LCC 10 in Domain five is therefore supported by substantial evidence. This Court finds no 11 error. 12 (C) Domain Six: Health and Well-Being. 13 In Domain 6, the ALJ evaluates the child’s general health and physical well- 14 being. Evaluations for this Domain look into the “cumulative physical effects of 15 physical and mental impairments.” 20 C.F.R. § 416.926a. The ALJ should take in 16 account any “somatic complaints” that relate to the child’s impairments, which 17 include headaches, any stomach discomfort, or changes in weight or eating habits. 18 Id. Plaintiff asserts the ALJ failed to assess LCC’s physical and mental ailments 19 properly when evaluating that LCC was less than marked in this Domain. Plaintiff 20 contends the ALJ did not consider that LCC was still having Listing-level tension 21 headaches, or how underweight LCC became in part because of the side effects 22 from the ADHD medication. 23 When evaluating LCC’s level for Domain six, the ALJ considered that 24 LCC’s weight issue was being effectively managed by LCC taking nutritional 25 supplements and he was able to put on weight. Additionally, Plaintiff testified at 26 the hearing they were planning his medication around his mealtimes in an attempt 27 to work around the side effects of the medication. Also, the ALJ noted that LCC 28 taking anxiety medication helped to reduce the stomach aches and headaches he ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 1:19-cv-03263-SAB ECF No. 14 filed 07/20/20 PageID.541 Page 15 of 15 1 was experiencing. The record shows LCC stated his headaches were reduced to 2 “one tiny one about once a week” AR 394. LCC’s treating physician evaluated 3 LCC to be a less than marked limitation in this domain, as well as two State 4 appointed physicians, Drs. Beaty and Wolfe. 5 As such, the ALJ’s assessment is supported by substantial evidence in the 6 record. Accordingly, the Court finds no error. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 10 3. The Decision of the Commissioner is AFFIRMED. 11 4. The District Court Executive is directed to enter judgment in favor of 12 Defendant and against Plaintiff. 13 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 14 this Order and provide copies to counsel and close the file. 15 DATED this 20th day of July 2020. 16 17 18 19 20 21 22 Stanley A. Bastian United States District Judge 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15
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