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Guerrero v. Colvin

United States District Court, E.D. Washington

August 26, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


JOHN T. RODGERS, Magistrate Judge.

BEFORE THE COURT are cross-motions for summary judgment. ECF No. 18, 22. Attorney Dana C. Madsen represents Plaintiff; Special Assistant United States Attorney Benjamin J. Groebner represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 7. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Plaintiff's Motion for Summary Judgment and DENIES Defendant's Motion for Summary Judgment.


On March 3, 2010, [1] Plaintiff filed an application for supplemental security income on behalf of a child under age 18, with an alleged disability onset date of September 17, 2011. Tr. 22, 132. Plaintiff's mother listed her disabling conditions as vision problems caused by albinism, along with breathing problems. Tr. 125. Plaintiff's claim was denied initially and on reconsideration, and she requested a hearing before an administrative law judge (ALJ). Tr. 72-116.

On March 16, 2012, ALJ R.J. Payne held a hearing, at which medical expert and pediatrician Mark Thoman, M.D., and Plaintiff's mother Nancy Guerrero, who was represented by counsel, testified. Tr. 38-85. On April 19, 2012, the ALJ issued a decision finding Plaintiff was not disabled. Tr. 22-34. The Appeals Council declined review. Tr. 1-3. The instant matter is before this court pursuant to 42 U.S.C. § 405(g).


The facts have been presented in the administrative hearing transcript, the ALJ's decision, and the briefs of the parties and thus, they are only briefly summarized here. At the time of the hearing, Plaintiff was four and one-half years old, and lived with her mother and two siblings in Airway Heights, Washington. Tr. 58-59. Plaintiff's mother, Olivia Guerrero Saenz, applied for benefits on behalf of her daughter, and explained that her oldest child was also born with albinism. Tr. 60. Ms. Guerrero explained that Plaintiff had trouble with her vision, and she wore glasses, but still had to squint to see. Tr. 62-65. Plaintiff has transitional lenses to help her to see outside. Tr. 65.

Ms. Guerrero said she has to closely watch Plaintiff outdoors and at playgrounds, because Plaintiff often runs into stationary objects and she tends to fall off playground equipment. Tr. 62-64. Ms. Guerrero also said Plaintiff's school was in the process of accommodating Plaintiff's vision issues by implementing larger print in the classroom, elevating papers on the desks, moving Plaintiff to the front of the room, using colored paper because it is not as bright as white, and using a projector screen instead of a television screen. Tr. 63.


The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ's determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to support the administrative findings, or if conflicting evidence exists that will support a finding of either disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).


To qualify for disability benefits, a child under the age of eighteen must have "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(I). The Social Security Administration has enacted a three step sequential analysis to determine whether a child is eligible for SSI benefits on the basis of a disability. 20 C.F.R. § 416.924(a). First, the ALJ considers whether the child is engaged in "substantial gainful activity." 20 C.F.R. § 416.924(b). Second, the ALJ considers whether the child has a "medically determinable impairment that is severe, " which is defined as an impairment that causes "more than minimal functional limitations." 20 C.F.R. § 416.924(c). Finally, if the ALJ finds a severe impairment, he or she must then consider whether the impairment "medically equals" or "functionally equals" a disability listed in the regulatory "Listing of Impairments." 20 C.F.R. § 416.924(c)-(d). An impairment is functionally equivalent to a listed impairment if it results in extreme limitations in one area of functioning or marked limitations in two areas. 20 C.F.R. § 416.926a(a). An impairment is a "marked limitation" if it "seriously interferes with [a person's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(I). By contrast, an "extreme limitation" is defined as a limitation that "interferes very seriously with [a person's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3)(I).

In determining whether an impairment exists, the ALJ assesses the child's functioning in six domains in terms of his/her ability to: (1) acquire and use information; (2) attend and complete tasks; (3) interact and relate with others; (4) move about and manipulate objects; (5) care for oneself, and (6) his/her general health and physical well-being. 20 C.F.R. § 416.926a(a)-(b) (2001). In order to demonstrate functional equivalence under the Final Rules, the child must exhibit a marked limitation in two of the domains, or an extreme limitation in one domain. 20 C.F.R. § 416.926a(e)(2)(i).


At step one of the sequential evaluation process, the ALJ found Plaintiff has never engaged in substantial gainful activity. Tr. 25. At step two, the ALJ found Plaintiff suffered from the severe impairments of albinism; history of recurrent upper respiratory infections with bronchospasm; and history of eye/vision disturbance including nystagmus, macular hypoplasia, and hyperopic astigmatism. Tr. 25. At step three, the ALJ found Plaintiff's impairments, alone and in combination, did not meet or medically equal one of the listed impairments. Tr. 26. With regard to functional equivalence, the ALJ concluded Plaintiff does not have an "extreme" limitation in any domain of functioning or a "marked" limitation in two domains. Tr. 28-33. Accordingly, the ALJ concluded Plaintiff was not disabled within the meaning of the Social Security Act. Tr. 34.


Plaintiff argues the ALJ erred at Step Three by finding her impairments do not meet or functionally equal Listing 2.02. ECF No. 18 at 14. Alternatively, Plaintiff argues the ALJ erred by failing to find Plaintiff has marked limitations in at least two domains. ECF No. 18 at 11-13.


A. Listing 2.02

Plaintiff contends the ALJ erred by finding her impairments do not meet or functionally equal a listed impairment. ECF No. 18 at 14.

For an impairment or combination of impairments to meet a Listing, all of the criteria of that Listing must be satisfied for the requisite durational period. Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (the impairment "must meet all of the specified medical criteria" in the Listing); see also 20 C.F.R. §§ 416.909 and 416.925(c)(3); SSR 83-19. The claimant bears the burden of proving an impairment or combination of impairments meets or equals the criteria of a Listing. Tackett, 180 F.3d at 1098-1099. "An ALJ must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment." Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001).

In order to be considered disabled under Listing 2.02, a claimant must show that she has a loss of central visual acuity and that the remaining vision in her better eye, after best correction, is 20/200 or less. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A § 2.00(A)(4)(b)(ii).

On April 26, 2010, Plaintiff was examined by Quinn Smith, M.D., at Northwest Pediatric Ophthalmology. Tr. 260-261. Dr. Smith found that Plaintiff had nystagmas, astigmatism, albinism, and macular hypoplasia. Tr. 261. On September 7, 2010, Plaintiff was again examined at Northwest Pediatric Ophthalmology. Tr. 259. The chart notes from that exam reiterated Plaintiff's conditions, and added: "get new glasses ASAP." Tr. 259. The chart notes also indicate that the examiner attempted to use pictures to measure Plaintiff's vision, and the entry included "20/200 - on?[sic]" Tr. 259.

The chart notes from Plaintiff's March 4, 2011, exam contain several handwritten numbers. Above the "CC" (an abbreviation for corrected vision), column, a handwritten notation of "" appears. Tr. 263. Below "CC, " on three separate lines are the following: 200; 125; and 20/125ou. Tr. 263. Also, under "Near, " is written "20/60ou [sic]." Tr. 263.

Plaintiff's chart notes from November 29, 2011, contain a circled "GL" column, [2] and underneath a notation of "20/400 push" for the right eye and "20/60-1 push" for the left eye. Tr. 274.

Mark Thoman, M.D., a retired pediatrician, who specialized in "medical toxicology, " testified that Plaintiff did not meet or equal a listing. Tr. 54, 101. Plaintiff's counsel asked Dr. Thoman if Plaintiff's eye exam indicating her vision was 20/400 would meet the Listing, and Dr. Thoman indicated he was unable to decipher Plaintiff's most recent corrected vision measurement from the record:

Q. Yes, thank you, well, in Exhibit 8F, page two, it looks like the vision is listing at [20/400] there isn't it?
A. Yes.
Q. Doesn't that meet the listings then for vision?
A. Well, the [20/400] I'm looking at the eye test just before that and it corrects so is [20/400] the uncorrected or was it corrected and that exhibit was not clear on that because if you look at prior exhibits they did correct to at least 120, I mean, sorry, [20/125] or [20/100] so there's some other information that would indicate that that is the corrected vision than... [Listing] 102.02 because that is the [20/200] corrected to [20/200] [sic] and as you point out [20/400] so we know that the visual fields are intact. We know that the extraocular motion was intact. We know that there's macular, there's hypoplasia but what was corrected and I don't really see that. I see the corrected vision on wearing glasses and the thing that's a new prescription but I don't really see the corrected vision based on what I saw on the previous thing so if there's information that indicates that that's the corrected vision then that certainly would put a different spin on it.

Tr. 56-57. Dr. Thoman commented on Plaintiff's prescription strength, and admitted he should have contacted the clinic to ask for an explanation of the meaning of the record notations:

Q. They gave her a prescription for new glasses.
A. And it's a fairly significant prescription that you'd expect based on the previous eye checks. I'm wondering if that was a type of procedure they did in order to dilate the pupils on the GL. I probably should have called a clinic [to] find out what ...

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