Opinion
NO. CV 13-3319 AGR
02-24-2016
JONATHAN BARRIOS, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
The opinion dated April 16, 2015 is VACATED. The court enters the following Opinion and Order:
Plaintiff Jonathan Barrios filed this action on May 15, 2013. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on June 7 and 13, 2013. (Dkt. Nos. 7, 10.) On January 24, 2014, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The court ordered supplemental briefing. On March 13, 2015, the Commissioner filed a response to the court's order. (Dkt. No. 19.) On March 27, 2015, the Plaintiff filed a reply. (Dkt. No. 20.)
Having reviewed the entire file, the court reverses the decision of the Commissioner and remands this matter for further proceedings.
I.
PROCEDURAL BACKGROUND
This case entails a continuing disability review in connection with a childhood disability benefits and social security benefits redetermination. Administrative Record ("AR") 13. At the age of 16, following a Title XVI application filed on January 15, 2009, Barrios received supplemental security income benefits based on disability as a child. He was found disabled secondary to Attention Deficit Hyperactivity Disorder ("ADHD") and learning deficits. Id. Separately, based on an April 30, 2010 claim for childhood disability benefits as the child of a disabled worker, Barrios was granted Title II benefits as of his mother's alleged onset date of June 2008. AR 13.
When Barrios turned 18 on February 19, 2010, continuing disability review was initiated in connection with his supplemental security income application. It was determined that as of August 1, 2010, Barrios was no longer disabled under the rules for determining disability in adults. AR 13. The determination was upheld on reconsideration. AR 13, 51-58. Likewise, Barrios' continued eligibility for Title II benefits as the child of a disabled worker was found to have ceased insofar as he was found to be not disabled from and after age 18. AR 13, 33-37. The determination was upheld on reconsideration. AR 51-55.
Barrios requested a hearing before an Administrative Law Judge ("ALJ"). AR 59. On January 17, 2012, the ALJ conducted a hearing at which Barrios, his mother, a medical expert and a vocational expert ("VE") testified. AR 335-60. On January 26, 2012, the ALJ issued a decision finding Barrios no longer eligible for social security income benefits as a disabled adult, and for Title II benefits. AR 13-25. On March 12, 2013, the Appeals Council denied the request for review. AR 6-9. This action followed.
II.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
"Substantial evidence" means "more than a mere scintilla but less than a preponderance - it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.
III.
DISCUSSION
A. Disability
A person qualifies as disabled and thereby eligible for such benefits "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003).
B. The ALJ's Findings
Following the five-step sequential analysis applicable to disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006), the ALJ found that Barrios has not engaged in substantial gainful activity since February 19, 2010, the alleged onset date. AR 16. Barrios has the severe impairments of ADHD and learning disorder, not otherwise specified. Id. He does not have an impairment that meets or equals a listing. AR 18. He has the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, but he can perform no more than simple, repetitive tasks on a constant basis; perform complex and detailed tasks on no more than an occasional basis; engage in no more than occasional interactions with supervisors, co-workers, and the public; and perform no more than production pace work requiring results at the end of the workday rather than work requiring specific production goals periodically throughout the workday. AR 19. He has no past relevant work, but there are jobs that exist in significant numbers in the national economy that he can perform such as factory worker, laundry worker and general helper. AR 23-24.
The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant's impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114.
C. Continuation of Benefits
Barrios contends the ALJ erred in not finding that his Title XVI benefits should have continued under 20 C.F.R. § 416.1338 despite termination of disability at the age 18 redetermination.
Disability benefits "shall not be terminated or suspended because the . . . physical or mental impairment, on which the individual's eligibility for such benefit is based, has or may have ceased, if - (A) such individual is participating in a program consisting of the Ticket to Work and Self-Sufficiency Program under section 1148 [42 U.S.C. § 1320b-19] or another program of vocational rehabilitation services, employment services, or other support services approved by the Commissioner of Social Security, and (B) the Commissioner of Social Security determines that the completion of such program, or its continuation for a specified period of time, will increase the likelihood that such individual may (following his participation in such program) be permanently removed from the . . . disability benefit rolls." 42 U.S.C. § 1383(6).
Consistent with the statute, the regulation states, in pertinent part, that a person's "benefits may continue after [the person's] impairment is no longer disabling . . . if . . . [the person is] participating in an appropriate program of vocational rehabilitation services . . . and . . . [the] completion of the program, or . . . continuation in the program for a specified period of time, will increase the likelihood that [the person] will not have to return to the disability . . . benefit rolls." 20 C.F.R. § 416.1338(a). "If you are a student age 18 through age 21 participating in an individualized education program described in paragraph (c)(4) of this section, we will find that your completion of or continuation in the program will increase the likelihood that you will not have to return to the disability or blindness benefit rolls." Id. § 416.1338(e)(2).
The ALJ acknowledged that Barrios "has required ongoing transitional job training after leaving high school." AR 21. The record indicates that Barrios' functioning improved since he began a program with The Help Group in 2007. Whereas Barrios' full scale IQ in 2006 was 80 (AR 324), Barrios' full scale IQ of 92 and his Wechsler memory scores in July 2010 indicated average functioning. AR 22, 246-48, 287, 342-43. Nevertheless, Barrios' academic skills were at a third-to-fifth grade level according to his Woodcock Johnson Achievement Test in September 2011. The medical expert testified that Barrios' academic skills testing was indicative of a learning disorder. AR 22, 287, 343-44. At the time of the hearing in January 2012, Barrios participated in a vocational training program through The Help Group, where he learned "how to prepare for a job in the community." AR 348. Barrios worked in the school café learning how to take inventory, use a cash register, communicate with customers, and cook and handle food properly. AR 22, 292. He participated in the school lunch delivery program where he learned how to take orders, fill out order forms, calculate total purchases, and go to local establishments to place the orders. He received outstanding ratings on his evaluation forms and qualified to work with the off-campus workability program. AR 292. He was noted to be a hard worker, displaying independence on the job and in the classroom. AR 293. He could complete many tasks with little prompting and minimal supervision. He was "extremely responsible when it [came] to initiating and completing tasks and he [had] great attendance." Id. He worked well with others, although it was noted that he needed to keep a professional relationship with his supervisors. AR 293. Barrios' experience at The Help Group clearly contributed significantly to his progress in learning work-related functions. As Barrios argues, his placement in the Bridgeport school system on an almost full time basis would interfere with his ability to work full time.
The court ordered supplemental briefing on the questions of (1) what steps a claimant must follow to obtain a determination under § 416.1338 and (2) whether a determination was made as to Barrios' eligibility under § 416.1338.
According to the Commissioner, the Field Office identifies individuals participating in an appropriate program when an application is made. (Dkt. No. 19 at ii.) Question 10 asks whether the claimant is participating in "[a]n individualized education program (IEP) through a school (if a student age 18-21)" or "[a]ny program providing vocational rehabilitation, employment services, or other support services to help you go to work?" AR 165. Barrios answered "No" to this question. Id. Barrios' Disability Report - Appeal similarly answered "no" to this question. AR 189. Because of Barrios' answers, "no evaluation or determination was made when Plaintiff's benefits ceased." (Dkt. No. 19 at iv.) Apparently, if a claimant answers yes to the appropriate questions and the claimant's benefits cease, "[o]n appeal, the Office of Disability Operations (ODO) would determine Plaintiff's participation in an appropriate Section 301 program." (Id. at iii.) "To obtain a final decision, a claimant must proceed through all steps of the administrative appeals process." (Id. at iv.) In other words, the ALJ does not make that determination.
Barrios acknowledges his answers on the forms, but argues that he should not be faulted because it is undisputed that he suffers from a mental impairment and the responses elsewhere on those forms stated that he is attending special education classes at the Bridgeport School (AR 161), and that the school and Barrios' mother "feel that Jonathan will benefit from this transition program to assist him with vocational skills and independent living" (AR 190). Barrios notes that, in the next Disability Report - Appeal, he answered "yes" to the vocational question, identified the Bridgeport School at The Help Group, and indicated that the services included work ability workshop and life skills. AR 197. In the remarks section, Barrios' mother indicates that Barrios will continue attending school at The Help Group until age 22 and "I'm requesting assistance to continue till then please." AR 198. Moreover, Barrios contends - and the Commissioner does not appear to dispute - that the notices he received did not advise him of how to pursue continued benefits administratively. It is not clear who bears the burden of initiating continued benefits proceedings. Assuming without deciding Barrios bore that burden, the court finds good cause for any mistake.
The Commissioner correctly argues that this court has jurisdiction to review only the final decision of the ALJ, who did not make the determination under § 416.1338. See Program Operational Manual Systems ("POMS") § DI 14505.010(A). Apparently, no determination was made by the ODO, which is responsible for determining the question of continued benefits after disability has ceased. "The determination of whether Plaintiff is entitled to continued benefits after Plaintiff's disability ceased was not properly before the ALJ and is not before this Court." Thomas v. Colvin, 2013 U.S. Dist. LEXIS 66569, *22 (E.D. Wash. May 9, 2013).
Barrios responds that this court can remand the case with instructions that the Commissioner make the appropriate administrative determinations.
In Leschniok v. Heckler, 713 F.2d 520 (9th Cir. 1983), the plaintiffs sought a preliminary injunction to enjoin the Secretary from violating 42 U.S.C. §425(b), the disability benefits counterpart to the statutory provision at issue in this case, § 1383(6). Id. at 521; 1986 Social Security Ruling ("SSR") LEXIS 37 n.1 (1986); SSR No. 11-2p (discussing continued payments for young adults in vocational rehabilitation or similar programs). The Ninth Circuit affirmed the district court's determination that it had jurisdiction under 28 U.S.C. § 1361, which "authorizes a court to compel a federal official to perform a duty where the duty is clear and certain, and the duty is ministerial and so plainly prescribed as to be free from doubt." Leschniok, 713 F.2d at 522.
The court therefore has jurisdiction to remand this case for further proceedings so the appropriate administrative proceedings under 20 C.F.R. § 416.1338 may take place. Relief is appropriate because, after the ALJ's decision, Barrios is entitled to an administrative determination as to continued benefits from the ODO and may exhaust his remedies. According to the Commissioner, a file is generally transferred to the ODO after an ALJ's decision denying disability benefits based on answers in the same application, which did not happen in this case as discussed above.
D. Listed Impairment
Barrios argues that he meets listing 12.02C.
At step three of the sequential analysis, the claimant bears the burden of demonstrating that his impairments are equivalent to one of the listed impairments that are so severe as to preclude substantial gainful activity. Bowen v. Yuckert, 482 U.S. 137, 141, 146 n.5 (1987). "If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step." Id. at 141; see also Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
"The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just 'substantial gainful activity.'" Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990) (quoting 20 C.F.R. § 416.925(a)) (emphasis in original). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id. at 530 (emphasis in original).
Barrios cites a letter from a treating therapist that noted impulsivity (leaving the classroom without permission, not notifying his mother of his whereabouts), poor frustration tolerance (property destruction in the home) and difficulty with executive functioning that have "at times" affected his functioning. AR 285. Listing 12.02C, however, requires a medically documented history of a chronic organic mental disorder of at least two years' duration and one of the following: (1) repeated episodes of decompensation, each of extended duration; (2) a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or (3) current history of one or more years' inability to function outside a highly supportive living arrangement, with indication of continued need for such an arrangement. The therapist's letter, and the other records, do not come close to evidencing impairments that meet or equal listing 12.02C. The ALJ did not err.
E. Treating Physician
Barrios argues that the ALJ erred in discounting the opinion of Dr. Temerova, his treating psychiatrist.
An opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To reject an uncontradicted opinion of a medically acceptable treating source, an ALJ must state clear and convincing reasons that are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician's opinion is contradicted by another doctor, "the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Orn, 495 F.3d at 632 (citations and quotation marks omitted). "When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict." Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation and quotation marks omitted).
In a letter dated March 2, 2011, Dr. Temerova stated that Barrios had been under her psychiatric care since April 2007. He was diagnosed with Attention Deficit Hyperactivity Disorder - Combined Type, Chronic Motor Tic Disorder, and Dyssomnia NOS. He was treated with medications with good response and no side effects. Nevertheless, Barrios "continues requiring support and redirection with [] most of his daily activities at home and at school." AR 281.
Subsequently, in a Mental RFC Questionnaire dated January 11, 2012, Dr. Temerova indicated she saw Barrios every six to eight weeks for 30-45 minutes. He was diagnosed with Attention Deficit Hyperactivity Disorder - Combined Type, Chronic Motor Tic Disorder, Dyssomnia, and Learning Disorder (reading, arithmetic). Dr. Temerova also diagnosed borderline intellectual functioning. AR 321. Her clinical findings included difficulties sustaining attention for longer than a few minutes, impulsivity, hyperactivity/fidgetiness, difficulties following through without prompting, difficulties with organization/breaking tasks into smaller steps, executive functioning limitations, easy frustration, anger and sleep disturbance. AR 321-22.
For mental abilities and aptitudes needed for unskilled work, Dr. Temerova indicated Barrios was not limited in his ability to understand and remember short and simple instructions. Barrios was limited but satisfactory in his ability to remember simple work-like procedures; carry out short and simple instructions; accept instructions and respond appropriately to supervisors; respond appropriately to changes in a routine work setting; deal with normal work stress; and interact with the general public. AR 323-24. Barrios was seriously limited (meaning less than satisfactory but not precluded) in the areas of maintaining attention for two hour segments; maintaining regular attendance and being punctual; sustaining an ordinary routine without special supervision; completing a normal workday and workweek without interruptions from psychologically based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; making simple work-related decisions; and maintaining socially appropriate behavior. Barrios was also seriously limited in the area of using public transportation and traveling in an unfamiliar place. AR 323-24. Dr. Temerova explained that distractibility has been a prominent symptom even with medications. Barrios has needed supervision to sustain a daily routine, and has required support with decision making. AR 323.
The ALJ found that Dr. Temerova's opinions were not supported by her own medical findings and were inconsistent with the record as a whole. AR 21-23. The ALJ found "inconsistent statements regarding how long the claimant has been attending the Help Group." AR 21. The Commissioner acknowledges the ALJ was mistaken in this regard but argues the error was immaterial. (JS at 13.)
The ALJ properly discounted Dr. Temerova's opinion that Barrios had borderline intellectual functioning. Dr. Temerova relied on test results from July 2006 conducted by Dr. Medina. AR 324. According to Dr. Temerova, the 2006 test results showed an IQ of 80 (borderline), with 65 verbal ("mild MR range") and 100 performance (average). AR 324. The ALJ concluded that Barrios' formal IQ score from the more recent July 2010 psychological evaluation was more indicative of his intellectual functioning. His full scale IQ of 92 and his Wechsler memory scores indicated average functioning. AR 22, 246-48, 287, 342-43.
Nevertheless, consistent with the medical expert's testimony, the ALJ acknowledged that the Woodcock Johnson Achievement Test in September 2011 showed that Barrios' academic skills were at a third to fifth grade level, which was indicative of a learning disorder. AR 22, 287, 343-44.
Social Security Ruling ("SSR") 11-2p governs evaluation of disability in young adults age 18 to approximately 25. Sources of information about a young adult's ability to work include medical sources, other sources, school records such as Individualized Education Program ("IEP"), and community job placements. The SSR cautions that IEP goals may be set lower than what would be expected of a young adult without impairments. A young adult with impairments "may have achieved the goal simply because it was set low." Id. at *12. The SSR acknowledges that "the young adult's ability to function in settings that are less demanding, more structured, or more supportive than those in which people typically work does not necessarily show how the young adult will be able to function in a work setting. We will consider the kind and extent of support or assistance and the characteristics of any structured setting in which the young adult spends his or her time when we evaluate the effects of his or her impairment(s) on functioning." SSR 11-2p, 2011 SSR LEXIS 2, *16-*17. "If a young adult can function only if he or she receives more help than would generally be provided to people without medical impairments, we consider how well the young adult would function without the extra help." Id. at *17. "When we determine whether a person can do other work that exists in significant numbers in the national economy, we do not consider whether he or she could do so with accommodations." Id. at *19.
Social Security rulings do not have the force of law. Nevertheless, they "constitute Social Security Administration interpretations of the statute it administers and of its own regulations," and are given deference "unless they are plainly erroneous or inconsistent with the Act or regulations." Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989).
Barrios argues that the ALJ failed to take into account the structured setting, support and assistance Barrios received in his school and work environments when assessing his functioning. The ALJ's findings about Barrios' functioning do not include an analysis of "the kind and extent of support or assistance and the characteristics of any structured setting" in which Barrios attended school or worked, and an assessment of his functioning without that support. Id. at *16-*17. The record indicates that Barrios did receive academic and vocational support and assistance in the Bridgeport programs that may not be available to people in an ordinary work setting. Barrios attended the Bridgeport School, "a specialized day school of The Help Group," which serves adolescents and young adults with special needs. AR 332. In the Bridgeport High School Program, for example, Barrios' goal was to decrease impulsive behavior (e.g., getting out of his seat, leaving class without permission, failing to comply with directives) and poor frustration tolerance from 11x per day to 5x per day with minimal verbal prompts. AR 219. His accommodations included small group setting, highly structured setting, smaller assignments, extra time, prompting to stay on task, extra guided practice, and verbal/visual cues. AR 227. These accommodations were "due to attention, memory, visual and motor integration deficits." AR 228. Later, in the Bridgeport Transition Program, for example, Barrios received psychiatric services, weekly individual sessions with a school-based therapist and "special vocational accommodations made through The Help Group." AR 285. As of September 28, 2011, Barrios struggled with impulsivity and maintaining attention during structured time, and "requires some prompting to stay on task throughout the day." AR 289, 313-14. His accommodations included small group learning, extra time for completion of tasks, new lessons divided into small units for comprehension, visual aids, verbal prompts and cues, and periodic breaks if needed repetition. AR 310. Round trip transportation was provided. AR 311.
The transition program is for students who are 18-21 and includes on-the-job training on campus and in the community. AR 333. Barrios was placed on a full time basis in the special day program. AR 311. --------
The ALJ should conduct the analysis required by SSR 11-2p in the first instance. This matter will be remanded for further proceedings consistent with this opinion and order.
IV.
ORDER
IT IS HEREBY ORDERED that this case is remanded under sentence four of 42 U.S.C. § 405(g) for further proceedings (1) in the age 18 redetermination; and (2) under 42 U.S.C. § 1383(a)(6) and 20 C.F.R. § 416.1338.
The Clerk shall serve copies of this Order herein on all parties or their counsel. DATED: February 24, 2016
/s/_________
ALICIA G. ROSENBERG
United States Magistrate Judge