(SS) T. v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 T.T., Case No. 2:19-cv-01608-JDP (SS) 12 Plaintiff, ORDER GRANTING CLAIMANT’S MOTION FOR SUMMARY JUDGMENT 13 v. ECF No. 11 14 COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING DEFENDANT’S 15 CROSS-MOTION FOR SUMMARY Defendant. JUDGMENT [16] ECF No. 14 [17] 18 Elizabeth T., on behalf of her minor son T.T. (“claimant”), challenges the final decision of 19 the Commissioner of Social Security (“Commissioner”) denying claimant’s application for Title 20 XVI child’s disability benefits. ECF No. 1. Claimant has impaired hearing, and his mother 21 argues, inter alia, that the Commissioner has not sufficiently considered his difficulties in 22 speaking. I agree; claimant’s expressive language impairment cannot be ignored or reduced to his 23 hearing impairment. I will remand this case so that the Commissioner can consider claimant’s 24 expressive language impairment in its own right.1 [26] 27 1 The case is submitted on claimant’s motion for summary judgment, ECF No. 11, to which the Commissioner has filed an opposition and cross-motion for summary judgment, ECF 28 No. 14. Both parties have consented to magistrate judge jurisdiction. ECF Nos. 6, 8. 1 I. STANDARD OF REVIEW 2 On appeal, I ask whether substantial evidence supports the factual findings of the 3 administrative law judge (“ALJ”) and whether the ALJ applied the correct legal standards. See 4 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 42 U.S.C. § 405 (g). 5 “‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance; it is such 6 relevant evidence as a reasonable person might accept as adequate to support a conclusion.” 7 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Although “the ALJ is responsible for 8 determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities,” 9 “the ALJ’s findings . . . must be supported by specific, cogent reasons.” Reddick v. Chater, 157 10 F.3d 715, 722 (9th Cir. 1998) (internal citation omitted); see also Embrey v. Bowen, 849 F.2d 11 418, 421-22 (9th Cir. 1988) (noting that, when an ALJ disagrees with medical opinions, “[t]he 12 ALJ must do more than offer his conclusions[; h]e must set forth his own interpretations and 13 explain why they, rather than the doctors,’ are correct”). Relatedly, I review only the reasons 14 provided by the ALJ in the disability determination and may not affirm based on a ground upon 15 which the ALJ did not rely. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 16 A motion for summary judgment may be granted only when the there is no genuine issue 17 of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 18 56. The burden of establishing that there is no genuine issue of material fact lies with the moving 19 party. See Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986); see also Nissan Fire & Marine 20 Ins. Co. v. Fritz Cos., 210 F.3d 1099 , 1102-03 (9th Cir. 2000). Once the moving party has met 21 that burden by “presenting evidence which, if uncontradicted, would entitle it to a directed verdict 22 at trial, [Fed. R. Civ. P. 56(e)(2)] shifts to [the nonmoving party] the burden of presenting specific 23 facts showing that such contradiction is possible.” British Airways Bd. v. Boeing Co., 585 F.2d 24 946, 950-52 (9th Cir. 1978); see also Nissan, 210 F.3d at 1102-03. 25 II. BACKGROUND 26 Claimant’s mother filed for Title XVI child’s disability benefits on behalf of claimant on 27 April 30, 2015, when claimant was less than five years old. AR 116. In a disability report 28 submitted as part of the application, claimant’s mother described claimant’s condition as 1 “[h]earing problems in both ears” and reported that claimant had been disabled since he was born. 2 AR 195. 3 Claimant’s application was denied both initially and upon reconsideration. AR 116-20, 4 127-32. Claimant then requested a hearing before an ALJ, AR 133-35, and a hearing was held on 5 June 23, 2017, AR 32. On May 30, 2018, the ALJ found that claimant was not disabled. AR 326 50. Claimant requested review, AR 169-70, and the Appeals Council denied claimant’s request, 7 AR 1-6. Claimant now seeks judicial review under 42 U.S.C. § 405 (g). 8 Claimant’s administrative file includes records or reports for the relevant time period from 9 several educational and health care facilities and providers: (1) Maureen Kruskal, M.D., a state 10 agency examiner, AR 96-101; (2) Henry Crowhurst, M.D., a state agency examiner, AR 103-15; 11 (3) Paula Kokal, M.A., a consultative speech and language examiner, AR 541-43, 766-67; 12 (4) Robert McElroy, M.D., a consultative examiner, AR 548-54; (5) Amanda McClellan, 13 claimant’s schoolteacher, AR 229-35; (6) Ann Creer, claimant’s teacher in a church-based 14 program, AR 313-16; (7) David Evans, M.D., treating source, AR 555-56; (8) Richard Lind, 15 M.A., treating source, AR 545-46; (9) Amy Budoff, M.D., responding to an interrogatory, 16 AR 756-65; (10) Sacramento Ear, Nose, and Throat, AR 329-487, 661-702; (11) Sutter Medical 17 Center, AR 488-500, 507-40, 703-12, 748-55; and (12) AMPLA Health, AR 501-06, 713-47. 18 III. ANALYSIS 19 A child under the age of 18 is disabled if he has “a medically determinable physical or 20 mental impairment or combination of impairments that causes marked and severe functional 21 limitations, and that can be expected to cause death or that has lasted or can be expected to last 22 for a continuous period of not less than 12 months.” 20 C.F.R. § 416.906 . While the definition 23 and evaluative process differs from that of adults, a child is entitled to disability benefits if his 24 impairment is “as severe as one that would prevent an adult from working.” Sullivan v. Zebley, [25] 493 U.S. 521, 529 (1990). 26 An ALJ determines a minor child’s eligibility for Social Security benefits in a three-step 27 sequential evaluation process, asking: (1) whether the claimant is engaged in substantial gainful 28 activity; (2) whether the claimant has a medical impairment, or combination of impairments, that 1 qualifies as severe; and (3) whether any of the claimant’s impairments meet or exceed the severity 2 of one of the impairments listed in the regulations.2 See 20 C.F.R. § 416 .924a. In answering the 3 third question, an ALJ must consider the combined effect of all medically determinable 4 impairments, including those that were not deemed severe at step two. 20 C.F.R. §§ 416.923 , 5 416.924a(b)(4), 416.926a(c). If a claimant’s impairment or combination of impairments have 6 lasted for a continuous period of at least twelve months and either meet or functionally equal the 7 severity of the impairments listed in the regulations, then the claimant will be found to be 8 disabled. 20 C.F.R. § 416.924 (d). In determining whether a claimant’s impairment or 9 combination of impairments functionally equal the regulation’s listed impairments, an ALJ must 10 assess the claimant’s functioning in six domains: (1) acquiring and using new information; 11 (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and 12 manipulating objects; (5) caring for himself; and (6) health and physical well-being. 20 C.F.R. 13 § 416.926a(b). A claimant’s functioning within these domains must be compared against children 14 of the same age who do not have impairments. Id. If a claimant’s impairments result in 15 “marked” limitations in two domains or an “extreme” limitation in one domain, then the 16 impairments functionally equal those listed in the regulations. 20 C.F.R. § 416 .926a(d). 17 At step one, the ALJ found that claimant had not engaged in substantial gainful activity 18 since April 30, 2015. AR 35. At step two, the ALJ found that claimant had the severe 19 impairment of bilateral hearing loss, but made no finding regarding claimant’s expressive 20 language impairment—apparently treating it more as a symptom of claimant’s hearing loss than 21 as a separate impairment. See AR 35. At step three, the ALJ found that claimant did not have an 22 impairment or combination of impairments that met or functionally equaled the severity of the 23 listed impairments. AR 35. In evaluating claimant’s six functional equivalence domains, the ALJ 24 found that claimant had less than marked limitations in the following four domains: acquiring and 25 using information, attending and completing tasks, interacting and relating with others, and health [26] 2 For adults, the analysis includes a fourth and fifth step, during which an ALJ further 27 determines whether a claimant can perform past relevant work or other specified types of work existing in significant numbers in the national economy. See Barnes v. Berryhill, 895 F.3d 702 , 28 704 n.3 (9th Cir. 2018); 20 C.F.R. § 416.920 . 1 and physical well-being. AR 44-49. In the remaining two domains—claimant’s moving about 2 and manipulating objects and his ability to care for himself—the ALJ found that claimant had no 3 limitations. AR 47-49. 4 In his motion for summary judgment, claimant argues that: (1) the ALJ erred by not 5 finding, or by insufficiently considering evidence of, a severe expressive language impairment; 6 (2) claimant plausibly demonstrated a presumptive disability, namely a neurodevelopmental 7 disorder; (3) the ALJ improperly rejected the opinion of claimant’s teacher, Ms. McClellan; 8 (4) the ALJ erred in assessing less than marked limitations in the domains of acquiring and using 9 information, attending and completing tasks, and interacting and relating with others; and (5) the 10 ALJ failed to specify whether he was finding claimant’s or claimant’s mother’s testimony to be 11 inconsistent with other evidence. See ECF No. 11 at 7-14. In opposition, the Commissioner 12 argues that: (1) the ALJ was not required to analyze claimant’s expressive language impairment 13 independent of his hearing loss; (2) claimant did not demonstrate a presumptive disability; (3) the 14 ALJ properly discounted Ms. McClellan’s questionnaire responses that were inconsistent with 15 medical evidence; (4) the ALJ properly found less than marked limitations in the three domains 16 challenged by claimant; and (5) the ALJ properly evaluated all testimony, and any lack of clarity 17 in the written decision is not a basis for remand. See ECF No. 14 at 8-16. 18 A. Expressive Language Impairment 19 Claimant argues that the ALJ failed to consider sufficiently claimant’s expressive 20 language impairment and erred by not finding it severe. ECF No. 11 at 8. As claimant points out, 21 “the step-two inquiry is a de minimis screening device to dispose of groundless claims.” Smolen 22 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 23 In considering claimant’s expressive language impairment, I start with the opinion of Ms. 24 Kokal, the only consultative examiner specializing in expressive language, who evaluated 25 claimant on two occasions. During her August 25, 2015 evaluation, claimant wore hearing aids 26 in both ears, yet Ms. Kokal still determined that claimant’s “overall speech intelligibility was 27 rated at less than 50% accuracy even with known context.” AR 543. Claimant’s performance on 28 the Structured Photographic Articulation Test put him at a “<1 percentile rank.” AR 543. Based 1 on the Preschool Language Scale-5, claimant’s score in expressive language skills put him in the 2 5th percentile for his age, and his score for receptive language skills put him in the 18th 3 percentile. AR 542. In her November 30, 2017 evaluation, during which claimant wore only one 4 hearing aid, Ms. Kokal noted that claimant exhibited “delays in his expressive language skills,” 5 “exhibited speech characterized by multiple sound distortions, omissions and substitutions,” and 6 had a rated speech intelligibility at “60 to 65% accuracy at the conversational level for speech.”3 7 AR 766-67. This suggests a severe expressive language impairment—indeed, one that is both 8 more disabling than claimant’s hearing loss and less improved by hearing aids. 9 Other sources corroborated these findings. Dr. McElroy, while opining primarily as an 10 otolaryngologist, made note of claimant’s “[s]peech delay secondary to partial hearing loss” and 11 his “mild deficits in interacting and relating with others, as a result of his delayed speech and 12 deficits in verbal expression.” AR 552. Ms. McClellan’s responses to a teacher questionnaire 13 noted: “claimant had very serious problems in acquiring and using information, due to difficulty 14 interacting with other children”; “claimant had a lack of understandable speech”; “conversation 15 was often difficult”; but “claimant did a lot better with paying attention and speaking when he 16 wore both hearings aids.”4 AR 39. Additionally, claimant’s mother and his church-based teacher 17 both testified about his speech issues. AR 36-37, 67, 74-75. 18 Based on the evidence in the record, the finding that claimant’s expressive language 19 impairment did not meet step two’s “de minimis” test is not supported by substantial evidence 20 and is contrary to the law. See Smolen, 80 F.3d at 1290 . This does not end the analysis, though; I 21 must conduct a harmless error analysis. Regardless of an ALJ’s step-two findings, an ALJ “must 22 consider the ‘combined effect’ of all the claimant’s impairments without regard to whether any 23 such impairment, if considered separately, would be of sufficient severity.” Howard ex rel. Wolff 24 v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003); see 20 C.F.R. § 416.923 (“[W]e will consider 25 3 Ms. Kokal noted that, even with only one hearing aid, claimant presented with “receptive language skills . . . within normal limits.” AR 767 (emphasis added). [26] 4 While the ALJ cites to Ms. McClellan for the proposition that “claimant performed well 27 in school, with the use of both hearing aids,” Ms. McClellan’s submitted responses do not support this conclusion. See AR 45, 229-35. Beyond Ms. Kokal’s findings, the record remains unclear as 28 to the degree of improvements in claimant’s expressive language skills when using hearing aids. 1 the combined effect of all of your impairments without regard to whether any such impairment, if 2 considered separately, would be of sufficient severity.”). If the ALJ properly considered the 3 combined effect of claimant’s hearing and expressive language impairments at step three, then the 4 step-two error would be harmless. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 5 (“[T]he court will not reverse the decision of the ALJ’s decision for harmless error, which exists 6 when it is clear from the record that the ALJ’s error was inconsequential to the ultimate 7 nondisability determination.”). 8 In claimant’s view, the ALJ’s discussion of his expressive language impairment was 9 “glossed in an evidence summary” and lacked sufficient analysis. See ECF No. 18 at 2, 8-9. The 10 Commissioner, on the other hand, argues that “[f]inding error in the ALJ’s consideration of 11 [claimant’s] speech impairment would simply require that this issue be considered at step three— 12 which the ALJ expressly did.” Id. at 14. According to the Commissioner, the ALJ “considered 13 the evidence regarding Plaintiff’s speech impairment in lockstep with the ALJ’s consideration of 14 [claimant’s] hearing deficit.” ECF No. 14 at 13. 15 In cases where the Ninth Circuit has held that a step-two error was harmless because it did 16 not impact the ultimate nondisability determination, either the severe impairments subsumed the 17 omitted impairments or later steps directly accounted for the omitted impairments. See, e.g., 18 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that “any error that the ALJ made in 19 failing to include the bursitis at Step 2 was harmless” because the “ALJ extensively discussed” 20 this impairment at step four and included limitations expressly accounting for the impairment); 21 Rice v. Saul, 817 F. App’x 395 , 397 (9th Cir. 2020) (“The ALJ found that Rice’s back pain 22 secondary to degenerative disc disease was severe and properly considered Rice’s non-severe 23 impairments in assessing his residual functional capacity.”); Koch v. Berryhill, 720 F. App’x 361 , 24 364 (9th Cir. 2017) (“The ALJ discussed the symptoms and limitations associated with both 25 arthritis and varicose veins when assessing Koch’s RFC, and the RFC includes limitations related 26 to arthritis and varicose veins, such as limitations on Koch’s ability to sit, stand, and use her 27 extremities.”); Matrunich v. Comm’r, Soc. Sec. Admin., 478 F. App’x 370, 371 (9th Cir. 2012) 28 (“Even if we were to hold that the ALJ committed legal error by finding that the knee pain was 1 not severe, it was harmless . . . The ALJ, by addressing Matrunich’s leg pain, necessarily 2 incorporated the pain that Matrunich was experiencing with her right knee into his evaluation.”). 3 The situation here is different. The ALJ’s later analysis did not address claimant’s 4 expressive language impairment. During the analysis of the six functional equivalence domains, 5 the ALJ noted only limitations due to hearing loss; the ALJ never mentioned, let alone analyzed, 6 claimant’s expressive language impairment. See AR 44-50. Instead, throughout the decision, the 7 ALJ seems to have considered claimant’s expressive language impairment as a symptom of his 8 hearing loss, not an independent source of potential disability. See, e.g., AR 41 (“The claimant 9 alleged he could not sustain age-appropriate activity, due to bilateral hearing loss, and related 10 symptoms.”) (internal citation removed). 11 But claimant’s hearing loss does not subsume his expressive language impairment; a 12 thorough treatment of the former does not necessarily include consideration of the latter. In Hill 13 v. Astrue, “the ALJ excluded the panic disorder diagnosis and improperly limited the definition of 14 panic attack to only those attacks severe enough to collapse someone to the ground.” 698 F.3d 15 1153, 1161 (9th Cir. 2012). The Ninth Circuit observed that both generalized anxiety and panic 16 disorders fit under the umbrella of anxiety disorders and have similar causes and treatments, but 17 noted that the impairments are distinct in their symptoms and in the limitations that they impose. 18 See id. (citing Index of Psychiatric Disorders, Diagnostic and Statistical Manual of Mental 19 Disorders, Fourth Edition 2000, §§ 300.01, 300.02, 300.21). The Ninth Circuit held that, 20 “[b]ecause the ALJ excluded panic disorder from Hill’s list of impairments and instead 21 characterized her diagnosis as anxiety alone, the residual functional capacity determination was 22 incomplete, flawed, and not supported by substantial evidence in the record.” Hill, 698 F.3d at 23 1161. 24 Here, as in Hill, claimant’s impairments may share a common cause and have overlapping 25 treatment, but they are distinct in their symptomology and limitations. Ms. Kokal’s evaluations in 26 particular—occurring when claimant wore at least one hearing aid—show that claimant’s 27 expressive language impairment stands apart from his hearing limitations. See AR 542-43, 76628 67. Put simply, claimant has trouble speaking even when his hearing impairment is significantly 1 corrected. Perhaps claimant’s difficulties with expressive language reflect the impact of impaired 2 hearing earlier in his life—but this is outside the scope of the disability analysis and beyond the 3 reach of the record. At present, the court need only determine whether the step two error was 4 harmless; it was not. By treating claimant’s expressive language impairment as a symptom of his 5 hearing loss—while focusing on the positive impact of hearing aids—the ALJ failed to consider 6 the combined effect of both impairments. See AR 35-49. 7 I will also note that the ALJ did not analyze Ms. Kokal’s opinions in the “Medical opinion 8 evidence” section of the decision, despite Ms. Kokal’s qualification as an acceptable medical 9 source “for speech or language impairments.” See AR 43-44; 20 C.F.R. § 404.1502 (a)(5). I will 10 not remand based on a perceived organizational shortcoming, but the omission here reflects a 11 deeper issue: the ALJ did not analyze Ms. Kokal’s findings while comparing claimant to 12 unimpaired children of the same age. The ALJ thus failed to analyze what may have been the 13 best medical evidence of claimant’s expressive language impairment. This is especially troubling 14 because Ms. Kokal’s findings undermine the ALJ’s conclusion that claimant does well with 15 hearing aids. See AR 41-50. 16 In sum, the ALJ failed to account for claimant’s expressive language impairment at step 17 three, and remand is required. See Hill, 698 F.3d at 1161 ; Lewis, 498 F.3d at 911 ; Rice, 817 F. 18 App’x at 397; Matrunich, 478 F. App’x at 371 . 19 IV. CONCLUSION AND ORDER 20 The court need not reach the other issues raised by claimant. For the reasons stated in this 21 opinion, the court remands this case for further consideration by the Social Security 22 Administration. The court hereby orders that: 23 1. Claimant’s motion for summary judgment, ECF No. 11, be granted; 24 2. the Commissioner’s cross-motion for summary judgment, ECF No. 14, be denied; 25 3. the decision of the Commissioner of Social Security be reversed, and the case 26 remanded for further proceedings; and 27 4. the clerk of this court enter judgment in favor of claimant T.T. and against defendant 28 Commissioner of Social Security, and close this case. 1 | ITIS SOORDERED. 3 | Dated: January 28, 2021 1 0 JEREMY D. PETERSON 4 UNITED STATES MAGISTRATE JUDGE