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1

 Defendant substituted pursuant to F.R.C.P. 25(d)(1) and 42 U.S.C. § 405(g). Michael J.

Astrue became Commissioner of Social Security on February 12, 2007.

REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

T. M. MARTENY,

Plaintiff,

v.

MICHAEL J. ASTRUE,

Commissioner of Social Security,1

Defendant.

CASE NO. C06-649 JCC-MJB

REPORT AND

RECOMMENDATION

Plaintiff T. M. Marteny, a minor, appeals to the District Court for review of a final

decision of the Commissioner of the Social Security Administration (the “Commissioner”)

seeking reinstatement of his disability benefits under the Social Security Act (“SSA” ), as

amended 42 U.S.C. § 1383c(c). For the reasons set forth below, it is recommended that the

Commissioner’s decision be REVERSED and REMANDED.

I. PROCEDURAL HISTORY

 The plaintiff was originally found disabled on March 26, 1994, with a date of onset as

December 1, 1993. Tr. 481. In 1997, a continuing disability review determined that T. M.’s

primary diagnosis was borderline intellectual functioning with a secondary attention

deficit/concentration disorder. Tr. 471. Plaintiff’s father timely appealed a Disability Hearing

Officer’s unfavorable decision affirming the cessation of T. M.’s benefits as of July 1, 2001. Tr.

124. On May 2, 2003, Administrative Law Judge (“ALJ”) Edward P. Nichols found that 

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 Case No. C03-2660-RSL.

3

 Plaintiff set out the following claims of error, but they appear subsumed in the broader

categories: 1) failing to adhere to the Appeal’s Council’s instructions upon remand, 2) failing to

fully and fairly develop the record, 3) failing to obtain medical evidence from a current

REPORT AND RECOMMENDATION

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T. M.’s disability had ceased as of July 1, 2001. Tr. 28-36. After an appeal to this district court,

the case was reversed and remanded by stipulation on March 12, 2004.2

 Tr. 483. The order

contained the following directive language, “The ALJ will address all medical opinions of record,

including reconsideration and specific address [sic] of the opinions of Drs. Pauli and Mashburn,

and will obtain Plaintiff’s counseling and psychiatric records from Catholic Community

Services.” Tr. 483-84 (Emphasis added).

On April 8, 2004, the Appeals Council issued an Order of Remand, which directed the

ALJ to: 1) obtain additional evidence concerning the plaintiff’s mental condition and learning

disabilities, including medical records noted in the order and updated school records; 2) further

evaluate the plaintiff’s mental and learning impairments under the technique described in 20

C.F.R. § 416.920a, providing specific findings and appropriate rationale for each of the

functional areas described in 20 C.F.R. § 416.920a(c); 3) further consider under the criteria of 20

C.F.R. § 416.994a, whether the plaintiff’s childhood disability continues or ends for the period at

issue beginning July 2001; and 4) if necessary, obtain evidence from a medical expert to clarify

mental diagnoses and the nature and severity of the plaintiff’s impairments (20 C.F.R. §

416.927(f); SSR 96-6p). A second hearing before ALJ Verrell Dethloff was held on October 25,

2005. Tr. 471-482. He found that the plaintiff did not have a continuing disability as defined

under the SSA. Tr. 482. 

II. THE PARTIES’ POSITIONS

Plaintiff requests that the Court reverse the Commissioner’s decision and remand for

further proceedings. Plaintiff argues various issues within two broad categories: (1) failing to

obtain testimony from a medical expert to clarify the plaintiff’s diagnoses and the severity of

Plaintiff’s mental impairments, and (2) failing to properly consider and evaluate all the evidence

of Plaintiff’s mental impairments pursuant to 20 C.F.R. § 416.920.3

 Dkt. #16 at 15, 20. The

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consultative evaluation, 4) failing to obtain any medical expert testimony, 5) failing to give the

plaintiff due process by improperly denying the requests for a supplemental hearing or

consultative testing. Dkt. #16 at 15.

REPORT AND RECOMMENDATION

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Commissioner argues that the ALJ’s decision is supported by substantial evidence and is free of

legal error and should be affirmed.

III. STANDARD OF REVIEW

This Court may set aside the Commissioner’s denial of social security disability benefits

when the ALJ’s findings are based on legal error or are not supported by substantial evidence in

the record as a whole. Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence

is defined as more than a mere scintilla but less than a preponderance; it is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen,

881 F.2d 747, 750 (9th Cir. 1989). Where the evidence is susceptible to more than one rational

interpretation, it is the Commissioner's conclusion which must be upheld. Sample v. Schweiker,

694 F.2d 639, 642 (9th Cir. 1982).

 IV. EVALUATING DISABILITY

The SSA final rules established a sequential evaluation process for determining disability

for children. In 1996, the Personal Responsibility and Work Opportunity Reconciliation Act

(1996 Act) was passed, thereby changing the eligibility standard for children. 42 U.S.C. §

1383c(c). The law applies to all claims filed after August 22, 1996. Jamerson v. Chater, 112

F.3d 1064, 1065 n.1 (9th Cir. 1997). The new three-step process requires a child claimant to

show: (1) that he was not engaged in substantial gainful activity, (2) that he had a “severe”

impairment or combination of impairments, and (3) that his impairments met, medically equaled,

or functionally equaled the severity of an impairment in the listings. 20 C.F.R. § 416.924. 

Children applying for benefits must show that their impairment or combination of

impairments caused "marked and severe functional limitations" in order to be found disabled. 20

C.F.R. § 416.906. "Marked and severe functional limitations" are levels of severity that meet,

medically equal, or functionally equal the severity of a listing. 20 C.F.R. § 416. 924(d); 20

C.F.R. § 416.902. A child’s functional limitations will be evaluated in six domains: (1) acquiring

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REPORT AND RECOMMENDATION

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and using information; (2) attending and completing tasks; (3) interacting and relating with

others; (4) moving about and manipulating objects; (5) caring for herself or himself; and (6)

health and physical well-being. See 20 C.F.R. § 416.926a(b)(1)(i)-(vi). A medically

determinable impairment or combination of impairments functionally equal a listed impairment if

it results in “marked” limitations in two domains of functioning or an “extreme” limitation in one

domain. 20 C.F.R. § 926a(d). A marked limitation exists when an impairment seriously

interferes with the ability to independently initiate, sustain or complete activities. 20 C.F.R. §

416.926a(e)(2).

Once a finding of disability is made, there is a presumption of continuing disability and

the Commissioner bears the burden of producing evidence of medical improvement to rebut the

presumption. Murray v. Heckler, 722 F.2d. 499 (9th Cir.1983); Bellamy v. Secretary of Health

& Human Services, 755 F2d 1380, 1381 (9th Cir. 1985). Medical improvement, as defined in

the regulations, is any decrease in the severity of an impairment present at the time of the most

recent favorable decision. 20 C.F.R. § 416.994a(c).

V. THE ALJ’S DECISION

After the district court’s Stipulation and Remand Order, ALJ Verrell Detloff held another

hearing and entered his findings on February 17, 2006. Tr. 471. At the time of the second ALJ

hearing Plaintiff was 16 and enrolled in high school. Tr. 473. The ALJ found that the SSA

record on November 17, 1997, demonstrated that the most recent favorable medical

determination of disability was based upon a diagnosis of borderline intellectual functioning. Id. 

Beginning July 1, 2001, Plaintiff experienced medical improvement of his conditions and the ALJ

found that Plaintiff’s disability ceased July 1, 2001, because the plaintiff no longer met or equaled

any listed impairment found in Appendix 1 of the regulations. Tr. 473-474. Moreover, the ALJ

found that the plaintiff did not become subsequently disabled, although he had not engaged in

substantial gainful activity since the alleged onset under 20 C.F.R. § 416.924(b). Tr. 481. The

ALJ found an additional diagnosis of dysthymic disorder to be a severe impairment, but that it,

too, “did not meet the listings at §112.04 for a mood disorder.” Tr. 477. The ALJ found the

record raised questions about the secondary diagnosis of attention deficit hyperactivity disorder

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REPORT AND RECOMMENDATION

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(“ADHD”). Consequently, he concluded the ADHD condition was “non-severe” at step two. 

Id. 

 At step four, the ALJ concluded that after reviewing each of the six domains, the

Plaintiff’s impairments did not functionally equal the listings. Tr. 480-482. Moreover, the ALJ

found none of Plaintiff’s impairments to be an “extreme” limitation in any domain of functioning. 

Tr. 479-80. He did find that the plaintiff had a “less than marked” limitation in four domains and

no limitations in the remaining two domains. Tr. 480-81. Finally, in his enumerated findings, he

opined that the plaintiff’s subjective complaints were only considered credible to the extent they

were supported by the evidence as summarized in his decision. Tr. 482. Accordingly, the ALJ

concluded that the plaintiff had not been under a “disability” at any time since his disability was

determined to have ceased on July 1, 2001. Tr. 481-82.

VI. DISCUSSION

 The issue of the ALJ’s failure to obtain medical expert testimony or a consultative

evaluation requires that the court consider whether the ALJ made reasonable efforts to ensure

that 1) the complete case was evaluated, and 2) it was evaluated by a qualified individual. The

Commissioner argues the ALJ’s actions were reasonable. Citing Howard ex rel. Wolff v.

Barnhart, 341 F.3d 1006, 1013 (9th Cir. 2003), the Commissioner argues that the ALJ’s review

of Plaintiff’s longitudinal medical history was a sufficient substitute for obtaining a medical

consultative examination. Further, the Commissioner argues that is was reasonable for the ALJ

to rely upon two state agency psychologists’ reviews of the medical record. Tr. 322-399. The

Court disagrees. To the extent that the ALJ’s use of a longitudinal history fails to incorporate

recent medical records, such reliance is insufficient. 

First, obtaining a medical expert was directed by the Appeals Council’s remand order. 

See supra Section I. Second, a careful examination of Howard finds, “the ALJ ‘shall make

reasonable efforts’ to ensure that a qualified individual ‘evaluates the case.’” Howard, 341 F.3d

at 1013, citing 42 U.S.C. § 1382c(a)(3)(1). The Howard court’s holding required two things: 1)

evaluation by a “qualified individual,” e.g., a pediatrician or other appropriate expert; and 2) a

case evaluation based on the record in its entirety. Id. at 1014 (emphasis added). The Howard

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4

 Although Plaintiff urges reversal based upon C.F.R. § 404.979, a reading of it shows it

is inapplicable here because it concerns decisions of the Appeals Council, not the ALJ. Plaintiff

also argues under Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987), that a failure to follow

administrative procedures requires reversal and remand. Frey, however, refers to the five step

sequential process and is thereby distinguishable.

REPORT AND RECOMMENDATION

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court’s interpretation of the statute excludes the ALJ from constructing his or her own case

evaluation. Id. The court further notes that there is a distinction between having an expert

evaluate a claimant with respect to that particular expert’s specialty, and having an expert

evaluate a claimant’s case in its entirety, considering all the medical records and determining

whether those records indicate that the claimant is disabled within the meaning of the Social

Security Act. Id. n. 2.

Rather than have an independent medical expert evaluate the entire case, it appears the

ALJ did exactly what the Howard court disavowed, “constructing his own case evaluation from

the evidence in the record.” 341 F.3d. at 1014. The Appeals Council’s directive included the

language “if necessary, obtain a medical expert,” which allows some exercise of discretion by the

ALJ. However, the focal point of the remand was the need to clarify mental diagnoses. Under

Howard, the ALJ needed a qualified individual, a medical expert, to consider more recent mental

health treatment and school records. 

 Plaintiff also points out that the Notice of Hearing indicated that a medical expert

would be at the hearing and a specific doctor was requested, yet no one appeared. Tr. 503, 509. 

Curiously, another medical expert was requested by name prior to the hearing, and again no one

appeared. Tr. 513. Plaintiff made an additional request for a medical expert at the hearing, but

the request was denied without explanation. Tr. 752-53. Plaintiff’s counsel noted for the record

his request for a supplemental hearing and a medical expert. Tr. 778.4

 Indeed these facts

demonstrate that the ALJ’s failure to obtain a medical expert’s evaluation effectively, if not

repeatedly, ignored the Appeals Council’s directive. As a consequence, the ALJ was left to

reach his own medical conclusions rather than have the benefit of an independent qualified

opinion in the record. Howard, at 1014.

Finally, the ALJ’s longitudinal review did not satisfy “the entire case” requirement under

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Howard, although urged by the Commissioner as sufficient. The Howard court rejected the

ALJ’s reliance on the individual evaluation and reports of separate specialists, and found that

where no effort was made to evaluate the entire case, there was error. The ALJ’s actions in the

instant case are indistinguishable from the ALJ’s actions rejected in Howard. The ALJ’s

longitudinal review contained the conclusions of state agency psychologists, Drs. Thomas

Clifford and Arthur Levy, whose reports agree that there was no evidence of marked or extreme

limitation after the comparison point date. Tr. 392-399. However, none of the state agency

reports of 2001 were responsive to the specific direction given in the Order of the Appeals

Council in 2004 to review all the medical records. Consequently, the “entire case” was not

properly reviewed.

VII. CONCLUSION

The Court need not reach the other assignments of error given the dispositive nature of

the reasons stated above. This Court recommends that the Commissioner’s decision be

REVERSED, and this matter be REMANDED pursuant to 42 U.S.C. § 405(g). A proposed

Order accompanies this Report and Recommendation.

DATED this 8th day of March, 2007.

AMONICA J. BENTON

United States Magistrate Judge

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