Howard ex rel. Wolff v. Barnhart

• Citation: 341 F.3d 1006
• Decision Date: 29 August 2003
• Docket Number: No. 02-15587.,02-15587.
• Parties: Sherry HOWARD, on behalf of Sarah WOLFF, Plaintiff-Appellant, v. Jo Anne BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

341 F.3d 1006

Sherry HOWARD, on behalf of Sarah WOLFF, Plaintiff-Appellant, v. Jo Anne BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.

No. 02-15587.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2003 — San Francisco, California.

Filed August 29, 2003.

COPYRIGHT MATERIAL OMITTED

Mark Ross Caldwell, Phoenix, Arizona, for the appellant.

William T. Dawson, Assistant Regional Counsel, Social Security Administration, Denver, Colorado, for the appellee.

Appeal from the United States District Court for the District of Arizona; Lawrence O. Anderson, Magistrate, Presiding. D.C. No. CV-00-01682-LOA.

Before PROCTER HUG, Jr., JOHN R. GIBSON,^* and RAYMOND C. FISHER, Circuit Judges.

OPINION

HUG, Circuit Judge.

Sherry Howard ("Howard"), the maternal aunt and legal guardian of Sarah Wolff ("Sarah"), appeals the district court's grant of summary judgment affirming the Commissioner of Social Security (the "Commissioner")'s determination that Sarah is no longer disabled within the meaning of Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c, as of September 1, 1997. We have jurisdiction under 28 U.S.C. § 1291. For the reasons below, we reverse and remand to the district court with instructions to remand to the Social Security Administration.

On appeal, Howard argues that the administrative law judge's ("ALJ") decision was not supported by substantial evidence because he engaged in a selective evaluation of the evidence and failed to consider the combined effects of Sarah's impairments. Additionally, Howard asserts that the ALJ reviewed Sarah's case under the incorrect legal standard and committed legal error by not making a reasonable effort "to ensure a qualified pediatrician or other individual who specializes in a field of medicine appropriate to" Sarah's disability evaluate Sarah's case, as required by 42 U.S.C. § 1382c(a)(3)(I). Each argument is addressed in turn.

I. Background

Sarah was born on March 14, 1993 and has lived with Howard since she was 15 days old. Sarah was first approved for Supplemental Security Income ("SSI") benefits on February 1, 1996. She was found disabled due to secondary borderline IQ and developmental delays under the "comparable severity" standard applicable at that time for the determination of childhood SSI benefits.

Public Law 104-193, amending Social Security Act § 1614(a)(3)(C), 42 U.S.C. § 1382c(a)(3)(C), was passed on August 22, 1996. The law established a new standard for determining SSI benefits for children under the age of 18. Under the new law, children previously granted SSI benefits were required to have their disability status redetermined. Accordingly, Sarah's eligibility under the new law was redetermined and she was found ineligible for benefits effective November 1997.

A. Sarah's Medical Records

On March 21, 1996, psychologist Dr. Roth evaluated Sarah when she was 36 months old and had completed formal developmental testing. The tests showed that Sarah had the mental age of a 27-month-old child. Additionally, the report indicated that "Sara ha[d] the socialization skills at a 15 month level, self-help and motor skills at an 18 month level, and communication skills at a 19 month level." Dr. Roth also reported that Sarah was a "3 year old child with a history of post-maturity, metabolic acidosis" and that her development had been either normal or questionable since she had been followed in the newborn clinic.

On April 11, 1996, speech/language pathologist Skorobohaty performed a speech and language evaluation. The tests revealed a "severe developmental delay in the area of phonology and articulation with average to low average expressive and receptive language skills." Speech and language therapy was recommended.

Also dated April 11, 1996, is a comprehensive development assessment report from a school psychologist and school psychometrist. Testing revealed "the presence of a moderate developmental delay in the areas of cognitive development ... and adaptive behaviors."

On May 8, 1996, physical therapist Renner evaluated Sarah. At this time, Sarah was 2.33 standard deviations below the norm for gross motor development. Additionally, Renner found that "muscle tone [was] hypotonic" and that Sarah had unstable trunk muscles. Sarah also underwent an evaluation by occupational therapist Reynolds on May 8, 1996. It was determined that although Sarah was cooperative, capable of learning, and could do more tasks than her developmental skill level indicated, Sarah had "some primitive reflexes and a significant delay in her fine motor movement." At this time, Sarah qualified for occupational therapy services.

On May 28, 1997, Sarah was evaluated by Dr. Maier, who determined that Sarah had a parent-child relational problem, failure to thrive and borderline intellectual functioning.

On August 14, 1997, Sarah underwent a psychological consultation by Dr. Leonard. Dr. Leonard determined that while Sarah was extremely small for her age, Sarah tested in the average age for intellectual testing. Further, Dr. Leonard determined that Sarah's "behavioral presentation and history did not support the diagnosis of any schizophrenic or psychotic process...." Dr. Leonard also suggested that Sarah continue to receive services such as "special needs preschool, physical, occupational, and speech therapy." It was also recommended that Sarah be watched carefully, because she had been diagnosed with delays in the past.

On March 17, 1998, speech/language therapist Gorney conducted a speech and language evaluation. The evaluation and observation indicated that Sarah demonstrated "age and developmentally appropriate receptive and expressive language skills as well as speech sound production skills." Additionally, "[t]he multidisciplinary evaluation team reviewed the results of [the] evaluation and determined and agreed that 12449 [Sarah] was no longer eligible to receive special education services in the area of speech/language skills."

On April 15, 1998, Reynolds conducted another occupational therapy evaluation. This evaluation revealed Sarah had "improved and matured tremendously in the past two years." Reynolds noted that visual-motor coordination still presented a challenge, but that Sarah may be ready to graduate from occupational therapy.

On April 22, 1998, Drs. Leonard and Li conducted an additional psychological evaluation report. This report indicated that Sarah was operating in the average range of intellectual abilities and that she performed well on aspects of verbal and visual-constructive processing. Sarah also showed signs of "subtle neurocognitive inefficiencies" that were not consistent with her intellectual functioning. The psychologists reported that Sarah exhibited developmental delays in gross and fine motor coordination. Further, the report indicated that Sarah was "eligible for special education services under the areas of moderate preschool delay and speech and language impairment." Additionally, the psychologists indicated Sarah should continue to receive "treatment intervention to improve her chances of being successful in the academic setting."

On May 7, 1998, Sarah underwent a full and individual evaluation by school psychologist Morrison. The evaluation reported that Sarah was no longer eligible for special education services. Rather, her cognitive development was within the average range and her adaptive skills were within the below average range. The school psychologist determined that Sarah had the skills needed to participate and progress in the "general kindergarten curriculum."

On August 28, 1998, a psychiatric evaluation report was conducted by Dr. Silverman of Michael B. Bayless and Associates. This evaluation revealed "developmental delays secondary to intrauterine drug exposure and/or neonatal hypoxia."

On November 24, 1998, Dr. Johnsen conducted a neurological evaluation, finding that Sarah "appeared to be a somewhat short child with minor dysmorphic features.... [having] significant delay in intellectual and, to a lesser extent, motor development."

On February 26, 1999, a report from the Arizona Long Term Care Services indicated that Sarah required assistance with dressing and was totally caregiver dependent. The report noted the April 1998 evaluation by a neuropsychologist. It then stated that Sarah was eligible for Arizona Long Term Care Services.

On May 3, 1999, Sarah was seen by Dr. Nowlen, a pediatric cardiologist. A report from Dr. Nowlen indicated that Sarah may have William's syndrome, but that she had no intracardiac or great vessel abnormalities, or signs or symptoms of congestive heart failure. At that time, there were no activity restrictions from a cardiac standpoint.

Additionally, State agency physicians Drs. Kirschner and Kirschvink reviewed Sarah's medical impairments. Upon review, they determined that Sarah's impairments did not meet, equal or functionally equal any listing impairment.

B. The ALJ Decision

A hearing before an ALJ was conducted on June 22, 1999. At that time, Sarah was six years old. Prior to the hearing, Howard requested that a medical expert specializing in pediatrics be called to appear at the hearing. Howard made the same request again at the hearing. The ALJ denied the requests, explaining that the record was sufficiently well-developed and that a medical expert was not needed. On October 15, 1999, the ALJ issued a decision that Sarah was not disabled under the new 1996 statutory definition. The Appeal's Council adopted the ALJ's decision.

At the hearing, both Howard and Sarah testified. The ALJ found Howard's testimony to be credible and sincere. Howard testified that she believed Sarah to be disabled because she was developing slowly and did not engage other children in play. Additionally, Sarah did not use playground equipment, acted younger than her age, and could not ride a bicycle. According to Howard, Sarah frequently failed...