# (SS) Johnson v. Commissioner of Social Security

> District Court, E.D. California · July 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10636247

## Case

- **Court:** District Court, E.D. California
- **Decided:** July 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
2
EASTERN DISTRICT OF CALIFORNIA
3
4
LEANN JOHNSON, on behalf of minor No. 1:21-cv-01704-DJC-GSA
5 child S.M.S.,

6 Plaintiff,
FINDINGS AND RECOMMENDATIONS
7 v. TO DENY PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT, TO AFFIRM
8 Commissioner of Social Security, THE COMMISSIONER’S DECISION, AND
TO DIRECT ENTRY OF JUDGMENT IN
9 FAVOR OF DEFENDANT
Defendant. COMMISSIONER OF SOCIAL SECURITY
10 AND AGAINST PLAINTIFF
11 (Doc. 19, 20)
12
13
I. Introduction
14
S.M.S, a minor child by and through his guardian Leann Johnson,1 seeks judicial review2
15
of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”)
16
denying the application for supplemental security income (SSI) pursuant to Title XVI of the Social
17
Security Act. Because substantial evidence and applicable law support the ALJ’s decision, the
18
recommendation is that the decision be affirmed.
19
II. Factual and Procedural Background
20
On August 8, 2016, Plaintiff applied for SSI. The Commissioner denied the application
21
initially on November 10, 2016, and on reconsideration on January 24, 2017. AR 97, 107. A
22
hearing was held before an Administrative Law Judge (the “ALJ”) on October 2, 2018. AR 62–
23
87. On March 19, 2019, the ALJ issued an unfavorable decision. AR 1–26. After the Appeals
24
Council denied review on January 24, 2020 (AR 35–40), this appeal followed.
25
III. The Disability Standard Generally
26
Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the
27

28 1 “Plaintiff” as used herein refers to the party, whereas “Claimant” refers to the individual minor child.
2 The parties did not consent to the jurisdiction of a United States Magistrate Judge. Doc. 8, 11.
Commissioner denying a Claimant disability benefits. “This court may set aside the
2 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal

3 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180

4 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the

5 record that could lead a reasonable mind to accept a conclusion regarding disability status. See

6 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a

7 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted).

8 When performing this analysis, the court must “consider the entire record as a whole and

9
may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social
10
Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the
11
evidence could reasonably support two conclusions, the court “may not substitute its judgment for
12
that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066
13
(9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless
14
error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the
15
ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
16
To qualify for benefits under the Social Security Act, a plaintiff must establish that
17 he or she is unable to engage in substantial gainful activity due to a medically
determinable physical or mental impairment that has lasted or can be expected to
18
last for a continuous period of not less than twelve months. 42 U.S.C. §
19 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . .
his physical or mental impairment or impairments are of such severity that he is not
20 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
21 in the national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or whether
22
he would be hired if he applied for work.
23 42 U.S.C. §1382c(a)(3)(B).
24 IV. Childhood Disability Standard
25 Pursuant to 20 C.F.R. § 416.906:
26
If you are under age 18, we will consider you disabled if you have a medically
27 determinable physical or mental impairment or combination of impairments that
causes marked and severe functional limitations, and that can be expected to cause
28 death or that has lasted or can be expected to last for a continuous period of not less
than 12 months. Notwithstanding the preceding sentence, if you file a new
2 application for benefits and you are engaging in substantial gainful activity, we will
not consider you disabled. We discuss our rules for determining disability in
3 children who file new applications in §§ 416.924 through 416.924b and §§ 416.925
through 416.926a.
4
A three-step sequential evaluation applies: 1- is the child engaged in substantial gainful
5
activity (if so, s/he is not disabled); 2- does the child have a severe impairment(s) (i.e. more than a
6
slight abnormality with more than minimal functional impact) (if not, s/he is not disabled); and, 3-
7
does the child’s impairment(s) meet, medically equal, or functionally equal a Listing3 (if not, s/he
8
is not disabled). 20 C.F.R. § 416.924(b)-(d).
9
V. The ALJ’s Decision
10
At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since
11
the application date of August 8, 2016. AR 7.
12
At step two the ALJ found that Plaintiff had the following severe impairments: complex
13
partial seizures and language disorder. AR 8.
14
At step three the ALJ found that Plaintiff did not have an impairment or combination thereof
15
that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404,
16
Subpart P, Appendix 1. AR 8. The ALJ also determined that Plaintiff did not have an impairment
17
or combination thereof that functionally equaled the severity of the listings. AR 9–21.
18
Accordingly, the ALJ concluded that Plaintiff was not disabled since his application date of
19
August 8, 2016. AR 21.
20
VI. Issues Presented
21
Plaintiff asserts one claim of error: the ALJ erred in concluding that Claimant is less than
22
markedly impaired in the domains of: 1- interacting and relating to others, and 2- health and
23
physical well-being.
24
A. Functional Equivalence
25
1. Applicable Law
26
Pursuant to 20 C.F.R. § 416.926a(a), to determine whether a child’s impairment(s)
27
28
3 20 C.F.R. pt. 404, subpt. P, App. 1
functionally equal a listing, the agency assesses the child’s functioning in six domains:
2
(i) Acquiring and using information;
3 (ii) Attending and completing tasks;
(iii) Interacting and relating with others;
4 (iv) Moving about and manipulating objects;
5 (v) Caring for yourself; and,
(vi) Health and physical well-being.

6
An impairment or combination of impairments functionally equals a listed impairment if it
7
results in “marked” limitations in two domains of functioning, or an “extreme” limitation in one
8
9 domain. See 20 C.F.R. § 416.926a(a), (d).
10 A child has a “marked” limitation in a domain when the impairment(s) interferes seriously
11 with the ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2).
12
A child has an “extreme” limitation in a domain when the impairment(s) interferes very seriously
13
with the ability to independently initiate, sustain, or complete activities.
14
When determining functional equivalence, the agency evaluates the “whole child” by
15
considering how the Claimant functions at home, at school, and in the community; the interactive
16
17 and cumulative effects of all of the Claimant’s medically determinable impairments on the
18 Claimant’s activities; and the type, extent, and frequency of help the Claimant needs. SSR 09-1p.
19 The agency considers statements from medical and non-medical sources when evaluating
20
functional equivalence.
21
2. Analysis
22
Briefly by way of background, the Claimant was involved in a motor vehicle accident in
23
March of 2016. Two weeks later he began experiencing intermittent seizures, behavioral
24
25 abnormalities and problems with verbal articulation. Plaintiff was classified as an older infant (11
26 months old) as of the August 8, 2016 application date, and was classified as a preschooler as of the
27
ALJ’s March 2019 decision date.
28
a. Domain Three: Interacting and Relating with Others
2
The ALJ found that Plaintiff had less than a marked limitation in interacting and relating
3
with others. In so concluding Plaintiff contends the ALJ erroneously rejected the consultative
4
5 opinion of Dr. Portnoff who examined the Claimant in June 2018 and opined he had marked

6 limitations in interacting and relating with others. AR 317. That limitation was identified in a

7 check-box questionnaire dated July 21, 2018, which was accompanied by a narrative examination

8 report and associated opinion. In the narrative report, Dr. Portnoff explained in relevant part that

9
the Claimant “has delays in language, can only speak in single words and has significant articulation
10
defect.” AR 322.
11
Plaintiff disputes the adequacy of the ALJ’s reasoning for rejecting the same, including: 1-
12
13 the subjective reports Ms. Salazar made to the consultative examiner regarding achievement of
14 speech milestones are inconsistent with earlier treatment records (Exhibits 3F/14, 6F/12); and 2-
15 that a less than marked limitation “was also supported by the expert medical opinion provided by
16
Dr. Akin. . .” Br. at 7, Doc. 19 citing AR 18.
17
As to the ALJ’s commentary concerning Ms. Salazar’s subjective reports, Plaintiff’s point
18
is reasonably well taken. Of the two citations offered by the ALJ concerning speech milestones,
19
the first (Ex. 3F/14) was from August 20, 2015, which predated the relevant period under review
20
21 which began on the application date in August 2016, and also predated both the March 2016 motor
22 vehicle accident and the alleged symptom onset. The second visit from December 21, 2017 notes
23
that Plaintiff, then age 2, was only speaking two words at a time which in fact supports Ms.
24
Salazar’s subjective report to Dr. Portnoff one year later that he was not meeting speech milestones
25
such as being able to speak in sentences by 24 months. AR 320.
26
The ALJ also appeared to draw an incorrect inference that Dr. Portnoff was basing his
27
28 assessment solely on Ms. Salazar’s subjective reports of Claimant’s failure to meet previous
milestones as opposed to Dr. Portnoff’s independent examination of the Claimant. Although Ms.
2
Salazar did provide substantial history of the Claimant’s speech milestones and social development,
3
Dr. Portnoff’s recitation of that subjective history was clearly delineated as a history of the present
4
5 illness. AR 319–20. By contrast, the speech sounds disorder and articulation defect were discussed

6 in Dr Portnoff’s objective portion, which included a mental status examination, a diagnostic

7 impression, a discussion/prognosis section and the functional assessment. These findings suggest

8 they were based at least in part on Dr. Portnoff’s independent examination and not solely on Ms.

9
Salazar’s subjective reports. AR 321–22.
10
Nevertheless, there are several interrelated reasons why Plaintiff’s argument is not
11
altogether persuasive. First, in the sentence immediately following the one Plaintiff quotes above,
12
13 the ALJ provided additional reasoning for rejecting Dr. Portnoff’s opinion, namely that “per a June
14 2018 neurological evaluation, the Claimant displayed fluent speech, with normal articulation,
15 comprehension, and vocabulary (Exhibit 11F).” AR 18. A review of that exhibit confirms the
16
accuracy of the ALJ’s description (AR 399), and Plaintiff does not contend otherwise.
17
Second, verbal articulation is not entirely dispositive of social functioning. As noted in 20
18
C.F.R. § 416.926a, children are not expected to be able to perform all activities within a domain,
19
and marked limitations in any of the activities related to a domain does not necessarily mean the
20
21 Claimant has overall marked limitations in that domain:
22 In paragraphs (g) through (l), we describe each domain in general terms. For most
of the domains, we also provide examples of activities that illustrate the typical
23
functioning of children in different age groups. For all of the domains, we also
provide examples of limitations within the domains. However, we recognize that
24
there is a range of development and functioning, and that not all children within an
25 age category are expected to be able to do all of the activities in the examples of
typical functioning. We also recognize that limitations of any of the activities in the
26 examples do not necessarily mean that a child has a “marked” or “extreme”
limitation, as defined in paragraph (e) of this section
27

28 20 C.F.R. § 416.926a(b)(1)(emphasis added)
As Defendant emphasizes, the Commissioner’s policy interpretation rulings identify
2
various examples of typical functioning under the domain of interacting and relating with others.
3
For Claimant’s age group (1 to 3 years), these examples include: 1- begins to separate from
4
5 caregivers, although is still dependent on them; 2- expresses emotions and responds to the feelings

6 of others; 3- initiates and maintains interactions with adults; 4- begins to understand concept of

7 “mine” and “his” or “hers.”; 5- shows interest in, plays alongside, and eventually interacts with

8 other children.; and 6- communicates wishes or needs, first with gestures and later with words that

9
can be understood most of the time by people who know the child best. SSR 09-5p, available at
10
2009 WL 396026, at *5.
11
The same ruling provides some signs that a child is deficient in this functional domain,
12
13 including: 1- does not reach out to be picked up, touched, and held by a caregiver; 2- has no close
14 friends, or has friends who are older or younger.; 3- avoids or withdraws from people he or she
15 knows; 4- is overly anxious or fearful of meeting new people or trying new experiences; 5-has
16
difficulty cooperating with others; 6- has difficulty playing games or sports with rules; and 7- has
17
difficulty communicating with others (for example, does not speak intelligibly or use appropriate
18
nonverbal cues when carrying on a conversation). Id. at *7. Thus, the inability to articulate oneself
19
through intelligible speech is but one sign of deficiency in the domain of interacting and relating
20
21 with others.
22 Relatedly, as the ALJ observed, after checking the box corresponding to a marked limitation
23
in the domain of interacting and relating with others, Dr. Portnoff’s narrative opinion explains that
24
the Claimant had only a mild limitation in his ability to socially integrate with peers and adults in
25
an age-appropriate manner due to his aggressiveness. AR 322. The ALJ explained that he found
26
this inconsistent with the marked limitation in interacting and relating with others that Dr. Portnoff
27
28 identified in the check-box questionnaire. AR 13.
The interplay between these separately identified limitations was the subject of an extended,
2
but somewhat unclear, discussion at the hearing between counsel, the ALJ, and the impartial
3
testifying expert, Dr. Akins. AR 69-78. The ALJ and Defendant both contend that Dr. Akins’
4
5 testimony supports a less than marked limitation in the domain of interacting and relating with

6 others, whereas Plaintiff contends otherwise. The testimony reads as follows:

7 A: As I read this chart, there is a marked impairment noted here for interacting and
relating with others.
8 Q: Yes.
9
A: But if that is the case, then I think that may have been perhaps a simple error,
in that, if you look down into the narrative enumerations at the very bottom, under
10 Number 3, he has mild irritability, but more significantly, can only speak in single
words, with significant articulation defect. So his deficiency in communication
11 significantly affects his interaction with others. Well, put that way, it does sound
like the evaluator here is using the term significantly interchangeably with marked.
12
Q: Okay.
13 A: Okay? That works for me. But then when I go to the report
itself, and we're looking now at Page 6
14 Q: Yes, sir.
A: -- and we look at the very bottom, under social development, it's listed that he
15 has mild limitations in his ability to socially integrate with peers and adults in an
age-appropriate manner, due to aggressiveness.
16
Q: Okay. So we have an obvious or an apparent incongruity here. Well, how would
17 you -- how would you resolve that, Doctor? What's your opinion, based upon what
you're observing here, as to the level of impairment, specifically in respect to this
18 domain of socialization?
A: Well, it looks like the evaluator's keying in primarily on occasions when the
19 youngster can be aggressive. And I would certainly think that would be associated
with a higher level of dysfunction. But I don't know that the mere instance of
20
finding those on occasion would somehow say that, for that category, that it's a
21 marked impairment. So I was surprised when I came to that enumeration, here, at
the end of the evaluation, because that did seem inconsistent with what had been
22 mentioned in the medical source statement at the beginning. But I didn't think that
overall, of the first page of the evaluation itself, which is Page 3 of the Exhibit 5F
23
-- under history of present illness, does say he is aggressive to his mother and
siblings. But she thinks that might be a side effect of his medication. He's not self-
24
injurious. So given that that's the only statement that I saw that related to any
25 difficulties with social interaction, per se, it leads me to think, well, I think that
there's not much here to inform us one way or the other.
26 Q: Well, can I –
A: I wouldn't say that that statement alone would be sufficient to say that there's a
27
marked impairment in the (b) (2) prong, or in the domain for interacting and
28 relating with others.
Q: Well, how do you -- how do you handle this, then, Doctor? On Page 6 of 5F,
again, above the social development, we see the communicative development. And
2 here, the examining doctor has noted that the -- his finding that the child has
moderate to marked limitations in his ability to communicate, understand, and
3 initiate and use language at an age-appropriate level. So, I mean, how does that
play into your thinking, as far as the opinion? And specifically, again, in regard to
4 socialization, you have the -- we've got a mild limitation in social development,
5 but in communication, we've got a moderate to marked. Would that support the
finding that there's a marked limitation, in regard to the ability to socialize?

6 A: Well, I think the way I have to approach this is to say that you have to consider
two things going on at the same time. And one of those is, there's some speech
7 delays with articulation disorder. And in addition, there also appears to be some
issue or some question about the appropriateness of the child's socialization, and
8 the child's ability to interact and relate with others. I think if you put those together,
9
that the comment that's made on Page 1, from the source statement again, now
going back to pull that into our discussion -- he has mild irritability. So he can be
10 cranky sometimes. But more significantly, can only speak in single words, with
significant articulation defects. So his deficiency in communication significantly
11 affects his interactions with others. So I take that to mean that the reason why that
social area is significantly affected, just because of the problems with the language.
12
And then if we look at the two sections on Fage 6, communication does say, he
13 has a moderate to marked limitation in his ability to communicate, understand,
initiate, and use language. that's primarily, I think, related to the articulation issue.
14 Now, But he only has a mild limitation in his ability to socially integrate with peers
and adults in an age-appropriate manner, due to aggressiveness. So the second one
15 here seems to cue more on the aggressiveness. The first page seems to cue more
on the language issue. So either way you look at it, I don't believe that the fact that
16
there's a moderate to marked limitation in his ability to communicate would
17 necessarily mean that there would automatically be a marked impairment in
communication. Logically, I would think, well, if he's got a moderate to marked
18 problem with speech, and that's impacting his social functioning, it doesn't follow
that the social functioning limitation would likely be moderate to marked.
19 Q: Okay. So in your opinion, just that specific domain, Domain 3, what if any
level of impairment do you think the child has?
20
A: Well, I would put it at -- for the domain analysis, I would put it as less than
21 marked. If I were doing it as a (b) prong analysis --
Q: Okay. Yes.
22 A: -- under (b)(2), I would say that it was moderate to marked.
Q: Okay. So you're telling me, let's go back to where we left off here, which is the
23
(b) prong of 112.02. So moderate to marked, you said, in that particular area. Let
me revisit this, then. In respect to the other (b) prongs, what if any impairment do
24
you note there?
25 A: Well, relying pretty heavily on the consultative examination, because that's
pretty much the main data that we have here, I would say none for understand,
26 remember or apply information. concentration, persistence and pace, I would say
mild. Under adapt and manage, I put that at a moderate level, based upon the report
27
that the child sometimes has meltdowns in reaction to noise sensitivity, crowds,
28 and certain types of touching. But, again, it doesn't seem like that was an area
where the child's conduct was so impactive that you would say that it was at a
marked level.
2 Q: Okay. Okay. If we go onto the analysis of whether there’s a functional equals
in this case, can you comment on the six domain areas, any level of impairment
3 that you’ve noted there, Doctor?
A: Well, I didn't find any that were at a marked level. Acquiring, using
4 information, I put as less than marked. The child had a reasonable IQ. The full
5 scale was 87, which would be low average. There was the speech-sound disorder
and the language disorder, and so using information would be included, I think, as

6 part of what we do with language. So the fact that there are some language
problems here would say that there's some impairment in that domain, but I
7 wouldn't say that there's enough here to say that it's at a marked level. So less than
marked. Attending and completing tasks, less than marked. There's not too much
8 in here to indicate that there's any problems with concentration. And at least with
9
regard to the ratings given by the consultative exami ner, it was at a mild level. So
less than marked. Number 3, interacting and relating with others, I put that as less
10 than marked, but, you know, we've had the discussion about the interpretation.
Moving about and manipulating objects, didn't see anything to indicate there were
11 problems there, so I said less than marked. Caring for yourself, I thought this was
less than marked, although it looks like there are some fine motor delays and
12
sensory processing issues that might impact that. And then health and physical
13 wellbeing, I don't usually offer an opinion in that domain, because it seems to call
for an opinion about a physical condition. But I certainly note that there are some
14 medical problems for this child, and I noted that Counsel had made the opening
statement that perhaps Domain 6 was at a marked level. And while I wouldn’t offer
15 an opinion on that one way or the other, I would certainly say that there do appear
to be some medical issues in the record that may be significant.
16
Q: Okay. Thank you, Doctor. Is there anything I haven't asked you, or we haven't
17 covered, that you wanted us to hear before I allow Counsel to cross-examine or
question you, sir?
18 A: No, I don't think so. In fact, it was Counsel that I was hoping to hear from, to
see if he felt that there was something I missed or anything other than what we just
19 looked at, that might help inform us. But the answer is no. I'd love to hear from
Counsel, actually.
20
ALJ: Okay. All right. Thank you, Dr. Akins. I appreciate your testimony. Mr.
21 Pena, if you do have questions, sir?
ATTY: Yes, I do. Thank you. Thank you, Doctor. What I wanted to ask was -- I'm
22 trying to figure out where you found that there would be a moderate to marked.
Was that in the domain analysis? Or was that in the (b) criteria analysis? Or any –
23
ME: Well, we don't do -- we don't do moderate to marked in the domain. So it
couldn't -- that wouldn't be an answer. There's no moderate. It's either marked or
24
less than marked. So that would be on the (b) prong side, under (b)(2).
25 EXAMINATION OF MEDICAL EXPERT BY ATTORNEY:
Q: Okay. So in the form that was completed by the doctor, the one that you noted
26 to at 5F, 1 –
A: Sure.
27
Q: - - that the doctor found interacting and relating with others at marked, and then
28 you clarified - - or rather, you analyzed the verbiage that was used at the bottom
of that page. But then, in 5F, 6, there was also the mention that there was a
moderate to marked. So where would that fall? Where would that go, in terms of
2 either the listing argument or -- I'm sorry, the listing analysis or the domains?
A: Well, that's a good question. That was actually what I was trying to describe
3 before. Let me take another stab at it. On our source statement, on Page 1, I think
that what the evaluator has done is to indicate that the significant effect on
4 interaction with others this is the Number 3 statement at the very bottom -- is
5 because of the language deficit. It's not because of aggressiveness. It's not because
of social difficulties, per se. It's because the language deficit so greatly impacts the

6 child's ability to engage in social communication with other people. And so I think
on the first page, the evaluator is tying together communication with interaction.
7 And then when we look on Page 6, those two have sort of been separated out, so
that on Page 6, there's some statements relating to communicative development --
8 that's where the moderate to marked comes in -- and then the discussion under
9
social development is simply marked. So it's not real clean, because we don't have
a listing, (b) prong, or a domain, that's clearly, exclusively, only about
10 communication skills or communication development. So it does make it a little
harder to tease that out. So the best that I could come up with is, when the doctor
11 actually came to the point of writing out what the opinions were, it seemed that the
opinion with regard to social was a mild limitation in the ability to socially
12
integrate, and when the doctor was talking only about communication, that there
13 was moderate to marked limitation in that area. I suppose, if you do separate those
two out, then maybe it makes more sense to talk about the communicative
14 development issue, under the (b) prong, (1) domain -- or, sorry, under the (b) (1)
prong, because that would be for understanding, remembering, and applying
15 information. And so it's that language issue, under applying information, where
you might get a moderate to a marked impairment in (b) (1).
16
Q: Okay. Doctor –
17 A: That make sense?
Q: Yes, it does. Thank you, Doctor. Doctor, did you ever get a chance, or have
18 you ever had a chance, to look at the rulings regarding the determination of the
functional equivalence? It breaks down what could potentially fall within each
19 category. For example, where communication can indeed affect the interacting
with others, vice versa, where there's other elements that can fit within more than
20
one of those domains. And the one I'm, for the record A And that's true. In fact,
21 that's why they use the domains, is it gives you a lot more flexibility than the (b)
prong does, yes.
22 Q: So just for the record, I'm referring to 09-lp, the Social Security ruling. That
one describes communication as an element, a potential example of the domain of
23
interacting with others. In your opinion, could it be that the communication, in and
of itself, if we were to just remove the social aspect of Page 6, would that, standing
24
alone, equate to a moderate to marked within interacting and relating to others?
25 A: Yeah, I think that’s fair to say. I think that’s essentially what the doctor did,
under the source statement on page 1.
26 Atty: ATTY: Thank you so much, Doctor. And with that, I have no
additional questions . . .
27

28 AR 70-79.
The discussion was less than clear, but perhaps could be distilled as follows: 1- that
2
communication (or even more specifically, verbal articulation and speech sounds) is but one
3
example within a subset under the third functional domain of interacting and relating with others;
4
5 2- that Dr. Akins would not conclude that a marked deficiency in communication would necessarily

6 equate to a marked deficiency in the domain of interacting and relating with others; 3- that in and

7 of itself, communication could theoretically be so significantly limited that it gives rise to a marked

8 deficiency in the third functional domain of interacting and relating with others; and 4- that as Dr.

9
Akins reads Dr. Portnoff’s opinion, Dr. Portnoff was expressing that the Claimant’s ability to
10
communicate was so limited by his articulation defect and speech sounds disorder that it gave rise
11
to a marked limitation in interacting with others notwithstanding other social development
12
13 limitations that were only mild in nature-- limitations that were more tethered to aggressiveness as
14 opposed to issues with articulation and speech sounds.
15 Thus, the ALJ was perhaps not entirely justified in finding an inconsistency between Dr.
16
Portnoff’s check-box questionnaire which identified marked limitations in interacting and relating
17
with others, with Dr. Portnoff’s narrative opinion which identified only mild limitations in social
18
development. AR 13. Although the two statements were perhaps in tension, they could potentially
19
co-exist as explained by Dr. Akins.
20
21 Nor was the ALJ entirely justified in concluding that Dr. Akins’ testimony supported a less
22 than marked limitation in the third functional domain of interacting and relating with others. The
23
testimony was simply not sufficiently clear to ascertain what Dr. Akins’ own opinion was on the
24
matter, or on what basis the opinion was rendered. Rather, the collective efforts of Dr. Akins’, the
25
ALJ, and Plaintiff’s counsel at the hearing seemed to be more geared toward pinning down what
26
Dr. Portnoff was concluding given that he examined the Claimant and completed both a check-box
27
28 questionnaire and a narrative report.
More importantly however, even adopting the most Claimant friendly interpretation of Dr.
2
Portnoff’s opinion – by focusing on the check-box portion identifying marked limitations in the
3
third functional domain and ignoring the potentially conflicting statement in the narrative opinion
4
5 concerning mild limitations in social development – Dr. Portnofff’s opinion, even if adopted in full,

6 would not result in a different outcome. Dr. Portnoff only identified one marked limitation in the

7 functional domains and no extreme limitations, whereas satisfying the listing level functional

8 equivalence standard requires at least two marked limitations or one extreme limitation. See 20

9
C.F.R. § 416.926a(a), (d).4
10
Thus, Plaintiff fails to establish harmful error with respect to the ALJ’s conclusion that the
11
Claimant had less than marked limitations in domain three, interacting and relating with others.
12
13 b. Domain Six: Health and Physical Well Being
14 As the ALJ explained,
15 This domain considers the cumulative physical effects of physical and mental
impairments and any associated treatments or therapies on a child's health and
16
functioning that were not considered in the evaluation of the child's ability to move
17 about and manipulate objects. Unlike the other five domains of functional
equivalence, which address a child's abilities, this domain does not address typical
18 development and functioning. The "Health and Physical Well-Being" domain
addresses how recurrent illness, the side effects of medication, and the need for
19 ongoing treatment affect the child's health and sense of physical well-being (20 CFR
416.929a(l) and SSR 09-8p) AR 20.
20

21 As the ALJ further explained,

22 Social Security regulation 20 CFR 416.926a(l)(3) and SSR 09-8p set forth some
examples of limited functioning in this domain that children of any age might have;
23
however, the examples do not necessarily describe marked or extreme limitation in
the domain. Some examples of difficulty children could have involving their health
24
and physical well-being are: (i) generalized symptoms, such as weakness, dizziness,
25 agitation ( e.g., excitability), lethargy (e.g., fatigue or loss of energy or stamina), or
psychomotor retardation because of any impairment(s); (ii) somatic complaints
26 related to an impairment (e.g., seizure or convulsive activity, headaches,
27
4 Notably, Dr. Portnoff did not provide a response regarding the sixth domain of health and physical wellbeing, nor
28 did Dr. Akins, but “deferred” (ostensibly because he is a psychologist and, as Dr. Akins explained, the sixth domain
“seems to call for an opinion about a physical condition).” AR 75.
incontinence, recurrent infections, allergies, changes in weight or eating habits,
2 stomach discomfort, nausea, headaches or insomnia); (iii) limitations in physical
functioning because of need for frequent treatment or therapy (e.g., chemotherapy,
3 multiple surgeries, chelation, pulmonary cleansing, or nebulizer treatments); (iv)
periodic exacerbations from an impairment(s) that interfere with physical
4 functioning (e.g., pain crises from sickle cell anemia); or (v) medical fragility
5 requiring intensive medical care to maintain level of health and physical well-being.
AR 21.

6
The ALJ found Claimant had a less than marked limitations in health and physical well-
7
being. In so concluding, the ALJ found: 1- an August 2016 EEG was normal with no seizure
8
9 activity observed; 2- despite Ms. Salazar’s subjective repo rts that the Claimant experienced
10 consistent seizures throughout the adjudicatory period, the record generally lacked evidence of such
11 seizures from the time he was first diagnosed and prescribed Trileptal in August 2016 to his
12
neurological follow up in June 2018; 3- in June 2018 it was reported that the Claimant stopped
13
taking his prescribed medication due to unspecified side effects and began experiencing seizures
14
again; and 4- later in June 2018, the Claimant was prescribed Keppra and there was no evidence of
15
subsequent seizures. AR 21.
16
17 Plaintiff disputes these findings for several reasons. First, Plaintiff notes that the condition
18 by its nature is based on the subjective reports of the Claimant’s mother which were sufficient
19 enough for the neurologist to diagnose complex partial seizures with impairment of consciousness
20
and to prescribe Trileptal. Br. at 10, Doc. 19. Plaintiff contends that the purportedly generalized
21
lack of evidence of recurrent seizures is not a clear and convincing reason to reject the Claimant’s
22
mother’s testimony, which the ALJ was required to provide under prevailing law before rejecting
23
subjective testimony.5 Br. at 11.
24
25
5 Once the Claimant establishes a medically determinable impairment that could reasonably be expected to cause some
26 degree of pain or symptom alleged, and the ALJ finds no malingering, the ALJ must offer specific, clear, and
convincing reasons for rejecting a Claimant’s subjective statements about the intensity, nature and limiting effects of
27 pain or other symptoms. Garrison v. Colvin, 759 F. 3d 995, 1014 (9th Cir. 2014 (Citing Smolen v. Chater, 80 F.3d
1273, 1281 (9th Cir. 1996). If there is objective medical evidence of an underlying impairment, the Commissioner may
28 not discredit a Claimant's testimony as to the severity of symptoms merely because they are unsupported by objective
As to the purported “general lack” of evidence of recurrent seizures, Plaintiff questions what
2
the ALJ might have required given that the Claimant’s mother testified that the seizures happen
3
about 6 times a day for 8 to 15 seconds (AR 82), meaning it was unlikely a seizure would occur
4
5 during a doctor’s appointment in the presence of the clinician. Plaintiff explains that “Seizures are

6 random by nature,” and that “Largely, the medical profession relies on a description of the activity.”

7 Br. at 11.

8 The argument is not entirely persuasive. First, as to the normal EEG from May 2016 (AR

9
273), it is true as Plaintiff argues that the EEG does not rule out the possibility of seizure activity,
10
a disclaimer set forth in the diagnostic impression itself, and even if it did it would still not be a
11
sufficient standalone basis to reject Ms. Salazar’s testimony about seizure activity as the lack of
12
13 objective corroboration cannot serve as a standalone basis to reject subjective testimony. However,
14 objective evidence still has relevance, and the EEG presumably has some objective diagnostic value
15 in detecting abnormal brain activity independent of the clinician’s physical examination.
16
Further, as to the ALJ’s finding that “subsequent treatment records up through
17
approximately June 2018 generally lack evidence of recurrent seizures,” this does not necessarily
18
suggest that the ALJ required in person observation of seizures by a clinician at an appointment.6
19
Rather, consistent with the ALJ’s observations, “evidence of” ongoing recurrent seizure activity
20
21 could presumably include: Ms. Salazar’s reports of continued seizure activity; pursuing the brain
22 MRI order by neurology; follow up visits addressing the condition; the efficacy or lack thereof of
23
Trileptal, side effects mitigation (rash), dosage adjustments, or novel treatment options. For
24
example, the ALJ explained that “from April of 2017 to May of 2018 timeframe, there were
25
minimal, if any reports of recurrent seizures.” AR 11 (citing Ex. 6F at 3–26 (AR 327–68). Plaintiff
26
27
medical evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991).
28
6 Though the ALJ separately noted later in the same paragraph that there were no such observations. AR 21.
does not dispute this assertion.
2
Plaintiff further contends that Ms. Salazar offered a consistent account of the seizure
3
activity, but Plaintiff cites no exams discussing the issue between the August 2016 neurology visit
4
5 at Valley Children’s Hospital (AR 270), and the June 2018 follow up (AR 381). Plaintiff simply

6 notes that the record “between the August 2016 neurology visit and the June 2018 neurology visit

7 consisted entirely of routine pediatrician visits, [when] no neurological exam was conducted.” Br.

8 at 11 (citing AR. 326, 328, 332, 334, 228, 340, 342, 344, 346, 348, 350, 388). However, neither

9
the nature of the visit, nor the specialty of the provider, would prevent the clinician from observing
10
and noting seizure activity as obvious as Ms. Salazar described it, namely up to 15 seconds of
11
twitching, eye rolling and momentary lapse in consciousness. AR 80–82. And, as mentioned, the
12
13 ALJ’s finding as to a general lack of evidence of seizure activity does not necessarily mean the ALJ
14 required objective observation of a seizure by a clinician. The ALJ separately noted several
15 sentences later that there was no such objective observation, but this was seemingly a distinct point.
16
Plaintiff further asserts that because there was no substantial change in the description of
17
the seizures, and because there is no evidence that the seizures abated (Ar. 388), there is actually
18
no substantial evidence that refutes the finding of the reviewing doctor that found marked
19
limitations in the domain of health and well-being ( Br. at 11), and that it is perfectly reasonable
20
21 for a patient to discontinue medication that is not only ineffective but also has negative side effects.
22 Id. Although as true as that may be, it is less reasonable for a patient to self-discontinue purportedly
23
ineffective medication without consulting the prescribing physician -- particularly for a condition
24
that purportedly caused serious and unabating limitations in functioning.
25
Plaintiff also emphasizes the prior administrative findings (PAMFs) of state agency
26
reviewing consultant Dr. De la Rosa from the initial non-disability determination in which Dr. De
27
28 la Rosa opined the Claimant had marked limitations in the sixth domain of health and physical
well-being. However, Plaintiff’s reliance on Dr. De la Rosa’s PAMF is misplaced given that Dr.
2
De la Rosa’s assessment in November 2016 predated the 18-month period during which there was
3
no evidence of consistent seizure activity or follow up by the Claimant. AR 91-92.
4
5 Additionally, under no interpretation of the substantial evidence standard would the ALJ be

6 required to affirmatively establish that the Claimant’s seizures resolved as Plaintiff suggests, rather

7 the burden of proof as characterized under prevailing law would tend to suggest otherwise.7 The

8 lack of neurological examinations for the nearly 2-year period from August 2016 to June 2018

9
undermines, rather than advances, Plaintiff’s argument. It suggests a lack of follow up on the
10
Claimant’s part for a condition that allegedly caused marked limitations to his health and physical
11
well-being. At a minimum one would expect the records to reflect consistent mention of the
12
13 continued seizures, the lack of effectiveness of Trileptal, and some follow up with neurology or
14 primary care for an alternative medication-- which neurology ultimately did by prescribing Keppra
15 in June 2018 notwithstanding Plaintiff’s contention that Keppra was also ultimately ineffective.
16
Thus, Plaintiff fails to establish harmful error with respect to the ALJ’s conclusion that the
17
Claimant had less than marked limitations in domain six--health and physical wellbeing.
18
c. The Medical Interrogatories
19
At the conclusion of the October 2, 2018 hearing, the ALJ stated “I do want a doctor that is
20
21 trained – a physical pediatrician to look at the entire record” Ar. 85. However, the interrogatories
22 were sent to a psychologist, Dr. Carver, which Plaintiff contends was clear error given the ALJ
23
clearly expressed an intention to consult a pediatrician. Plaintiff contends that because the ALJ did
24
25
7 See Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (“The Claimant carries the initial
26 burden of proving a disability.”) (citation omitted); Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir.
1993) (“The mere existence of an impairment is insufficient proof of a disability” because the
27 “Claimant bears the burden of proving that an impairment is disabling”); Bowen v. Yuckert, 482
U.S. 137, 146 (1987) (“It is not unreasonable to require the Claimant, who is in a better position to
28 provide information about his own medical condition, to do so.”).
not remedy this clear error he failed his duty to develop the record and consequently was forced to
2
play doctor.
3
“The ALJ has a duty to develop the record … even when the Claimant is represented by
4
5 counsel.” DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). The duty is triggered where the

6 evidence is ambiguous or inadequate for adjudication. Id. “A specific finding of ambiguity or

7 inadequacy of the record is not necessary to trigger this duty to inquire, where the record establishes

8 ambiguity or inadequacy.”). McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (as amended)

9
Here, the fact that the ALJ stated an intention to obtain a pediatrician’s opinion does not
10
necessarily establish that a pediatrician’s opinion was required to correct evidentiary ambiguity or
11
insufficiency. As Plaintiff acknowledged earlier, “the medical evidence between the August 2016
12
13 neurology visit and the June 2018 neurology visit consisted entirely of routine pediatrician visits,
14 where no neurological exam was conducted.” Br. at 11 (citing AR 326, 328, 332, 334, 228, 340,
15 342, 344, 346, 348, 350, 388). Significantly, Plaintiff did not produce an opinion from these
16
pediatricians, nor does Plaintiff otherwise point to evidence from these pediatrician visits, that
17
would suggest marked or extreme limitations in the sixth functional domain of health and physical
18
well-being. Rather, Plaintiff’s argument is predicated on a misstatement of law, namely that “In
19
circumstances where the Administrative Record lacks medical opinion from a physician who
20
21 reviewed all pertinent medical data, the ALJ is obligated to further develop the Claimant’s medical
22 history.” Br. at 11. This statement of law is unsupported by citation to any social security ruling,
23
regulation, policy interpretation or judicial opinion. Plaintiff subsequently quotes district court
24
authority variously addressing the prohibition of an ALJ “succumbing to the temptation to play
25
doctor,” such as by reviewing “complex laboratory findings” or “raw medical data.”
26
In short, there was nothing unique or idiosyncratic about the events here. As is often the
27
28 case, there will exist a significant gap in time between the agency’s review at the
initial/reconsideration determination levels and the ALJ hearing. Claimants routinely continue
2
pursuing medical care during this time and generating new medical records. Meadows v. Saul, 807
3
F. App’x 643, 647 (9th Cir. 2020) (unpublished) (noting there “is always some time lapse between
4
5 a consultant’s report and the ALJ hearing and decision, and the Social Security regulations impose

6 no limit on such a gap in time.”). Thus, it stands to reason that an ALJ cannot be categorically

7 prohibited from reviewing clinical findings from this period of time and interpreting them as an

8 ALJ is nearly always tasked with independently reviewing some medical evidence that post-dates

9
the agency consultant’s review at the initial and reconsideration levels and forming conclusions
10
about their functional significance. This is consistent with the ALJ’s role as characterized by the
11
Ninth Circuit. See Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“the
12
13 ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.”).
14 Here, for example, the ALJ did not need the assistance of medical experts or consultative
15 guidance from a pediatrician in order for the ALJ to effectively review routine pediatrician visits
16
and make basic non-technical observations such as the lack of complaints of recurrent seizures. See
17
AR 11 (“from April of 2017 to May of 2018 timeframe, there were minimal, if any reports of
18
recurrent seizures.” AR 11 (citing Ex. 6F at 3–26 (AR 327–68)).
19
Thus Plaintiff fails to establish that the ALJ harmfully erred in failing to obtain a functional
20
21 opinion from a pediatrician notwithstanding that the ALJ expressed an intention to do so at the end
22 of the hearing.
23
VII. Recommendation
24
For the reasons stated above, the recommendation is that the Court find that substantial
25
evidence and applicable law support the ALJ’s conclusion that the Claimant was not disabled, that
26
Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security be
27
28 denied, and that the Clerk of Court be directed to enter judgment in favor of Defendant
Commissioner of Social Security and against Plaintiff Leann Johnson, on behalf of minor child
2
S.M.S.
3
VIII. Objections Due Within 14 Days
4
5 These Findings and Recommendations will be submitted to the United States District Judge

6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

7 days after being served with these Findings and Recommendations, any party may file written

8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

9
Findings and Recommendations.” The parties are advised that failure to file objections within the
10
specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
11
838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
12
13
14 IT IS SO ORDERED.

15 Dated: July 7, 2024 /s/ Gary S. Austin
16 UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10636247. Public record. Not legal advice.