MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS
JEAN ROSENBLUTH, Magistrate Judge.
I. PROCEEDINGS
Plaintiff C.M., though his mother, Maria Martinez, seeks review of the Commissioner's final decision denying his application for Supplemental Security Income ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed February 21, 2014, which the Court has taken under submission without oral argument. For the reasons discussed below, the Commissioner's decision is reversed and this action is remanded for further proceedings.
II. BACKGROUND
Plaintiff was born on May 2, 2008. (Administrative Record ("AR") 76.) At the time of the hearing, he was a four-year-old preschooler. (AR 310.)
On January 31, 2011, Plaintiff's mother filed an application for SSI on Plaintiff's behalf, alleging that he had been disabled because of "[d]evelopmental delay" since April 1, 2009. (AR 37, 76, 101.) After Plaintiff's application was denied, he requested a hearing before an Administrative Law Judge. (AR 42.)
A hearing was held on September 27, 2012. (AR 305-22.) Plaintiff's mother testified, but Plaintiff, who was represented by counsel, did not. (Id.) In a written decision issued September 28, 2012, the ALJ determined that Plaintiff was not disabled. (AR 17-29.) On November 30, 2012, Plaintiff requested that the Appeals Council review the ALJ's decision. (AR 9.) On December 21, 2012, the Appeals Council denied the request. (AR 4-6.) This action followed.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.
IV. THE EVALUATION OF CHILDHOOD DISABILITY
"An individual under the age of 18 shall be considered disabled . . . if that individual has 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); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1013 (9th Cir. 2003).
A. The Three-Step Evaluation Process
In determining eligibility for SSI based on a childhood disability, the Commissioner follows a three-step evaluation process. 20 C.F.R. § 416.924(a).
In the first step, the Commissioner considers whether the child has engaged in substantial gainful activity; if so, the child is not disabled and the claim must be denied. § 416.924(b). If the child is not engaged in substantial gainful activity, the second step requires the Commissioner to consider whether he has a "severe" impairment or combination of impairments; if not, a finding of not disabled is made and the claim must be denied. § 416.924(c). If the child has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment meets, medically equals, or functionally equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1. § 416.924(d). If so and the impairment also meets the duration requirement, the child is disabled and benefits are awarded. Id.
An impairment "meets" a listed impairment if it satisfies all of the criteria described in the Listing. § 416.925(c)(3). An impairment "medically equals" a listed impairment "if it is at least equal in severity and duration to the criteria of any listed impairment." § 416.926(a).
An impairment "functionally equals" a listed impairment if it results in marked limitations in at least two of six functional domains or an extreme limitation in at least one domain. § 416.926a(a). The six functional domains are (1) acquiring and using information; (2) attending and completing tasks; (3) interacting with and relating to others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. § 416.926a(b)(1)(i)-(vi). A marked limitation "interferes seriously with [the child's] ability to independently initiate, sustain, or complete activities." § 416.926a(e)(2). An extreme limitation "interferes very seriously" with those things. § 416.926a(e)(3).
B. The ALJ's Application of the Three-Step Process
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the application date. (AR 20.) At step two, the ALJ found that Plaintiff had the severe impairments of "a relational problem, and defiant and disruptive behavior disorders." (Id.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically or functionally equaled one of the Listings. (Id.) Specifically, the ALJ found that Plaintiff had "significant but less than marked limitation" in four of the six functional domains: acquiring and using information, attending and completing tasks, interacting with and relating to others, and caring for himself. (AR 22-29.) Plaintiff had "no significant limitation" in two functional domains: moving about and manipulating objects and overall health and physical well-being. (Id.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 29.)
V. DISCUSSION
Plaintiff contends that the ALJ committed reversible error by failing to (1) consult with a medical expert and (2) account for Plaintiff's "cognition deficit" and "communication disorder." (J. Stip. at 2.)
A. The ALJ Erred in Failing to Obtain a Complete Case Evaluation
Plaintiff contends that the ALJ erred by not making a reasonable effort "to ensure that a qualified pediatrician or other individual who specializes in a field of medicine appropriate to the disability of the individual (as determined by the Commissioner of Social Security) evaluates the case of such individual," as required by 42 U.S.C. § 1382c(a)(3)(I). (J. Stip. at 3-4.) In Howard, the Ninth Circuit interpreted § 1382c, holding that an ALJ could not rely on physicians' individual evaluations and reports but was "required to make a reasonable effort to obtain a case evaluation, based on the record in its entirety, from a pediatrician or other appropriate specialist, rather than simply constructing his own case evaluation from the evidence in the record." 341 F.3d at 1014.
In response to Howard, the Social Security Administration issued Social Security Acquiescence Ruling 04-1(9), 69 Fed. Reg. 22578 (Apr. 26, 2004). The ruling states that under Howard, an ALJ may rely on a "case evaluation made by a State agency medical or psychological consultant that is already in the record" or "the testimony of a medical expert." 69 Fed. Reg. at 22580. Moreover, "[w]hen the ALJ relies on the case evaluation made by a State agency medical or psychological consultant, the record must include the evidence of the [consultant's] qualifications," and the ALJ "must ensure that the decision explains how the . . . consultant's evaluation was considered." Id.
As thorough as the ALJ's decision was and although it appears to have been supported by substantial evidence, remand is necessary because the ALJ erred by failing to secure a complete case evaluation from an appropriate specialist based on the record in its entirety. See Vega ex rel. J.G. v. Astrue, No. ED CV 11-769-SP, 2012 WL 1144407, at *5 (C.D. Cal. Apr. 2, 2012) (remanding for compliance with Howard even though substantial evidence supported ALJ's decision). Indeed, the ALJ never mentioned Howard or Ruling 04-01(9) in his decision, nor did he cite any medical opinion that satisfied its requirements. (See AR 17-29); 69 Fed. Reg. at 22580.
The Commissioner contends that the ALJ satisfied Howard and Ruling 04-01(9) because psychiatrist L.O. Mallare "evaluated the medical evidence of record and concluded that Plaintiff had less than marked limitations in the areas of acquiring and using information, and attending and completing tasks" and "no limitations in the other areas of function." (J. Stip. at 4-5; see also AR 34 (Dr. Mallare's opinion).) But as the Commissioner acknowledges, "the ALJ did not expressly address Dr. Mallare's assessment" (J. Stip. at 5; see AR 17-29); as such, it cannot satisfy Howard's mandate that the ALJ consider a complete case evaluation from an appropriate specialist. See Howard, 341 F.3d at 1014 (remand appropriate even though state-agency doctors evaluated case, in part because "ALJ did not consider these evaluations in making his decision"); see also 69 Fed. Reg. at 22580 (when relying on medical-consultant evaluation, ALJ "must ensure that the decision explains how the . . . consultant's evaluation was considered"). In any event, Dr. Mallare necessarily failed to evaluate Plaintiff based on the "record in its entirety" because he wrote his report in August 2011, more than a year before the hearing, and did not take into consideration any evidence Plaintiff submitted after that. See Willmett ex rel. A.P. v. Astrue, No. 2:10-cv-01201-KJN, 2011 WL 3816284, at *4 (E.D. Cal. Aug. 25, 2011) (noting that ALJ never mentioned Howard or acquiescence ruling in decision and remanding because, among other reasons, state-agency evaluators necessarily never saw some record evidence). Some of this evidence was clearly not material and would not have changed Dr. Mallare's opinion, but the Court cannot say that about all of it. For instance, after Dr. Mallare wrote his opinion, Plaintiff submitted records from the Los Angeles Child Guidance Clinic (AR 224), including a May 2011 assessment by two therapists diagnosing Plaintiff with "Negative/Defiant" disorder and "Disruptive Behavior Disorder" (AR 237). In an August 2012 transfer summary, Plaintiff's therapists noted that he had made "tremendous progress" in treatment and was being transferred to a "lower level of care," but he "continue[d] to present with concerns with his defiance, tantrums, and aggression in the community towards his mother and sibling." (AR 241.) His diagnosis was listed as "disruptive behavior disorder." (Id.) In August 2012, Plaintiff's pediatrician, Dr. Jonathan Adhami, completed medical-statement forms opining that Plaintiff had a "mental illness" and "extreme" limitations in all functional areas, including acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulating objects, and caring for himself. (AR 220-23, 295-96.) Although the ALJ reasonably discredited Dr. Adhami's opinion (AR 23), it was nevertheless in the record and should have been reviewed by a state-agency psychiatrist or medical expert as part of the record in its entirety. See Godwin ex rel. V.E. v. Comm'r of Soc. Sec., CV 09-482-PHX-MHM, 2010 WL 1337745, at *4 (D. Ariz. Mar. 31, 2010) (Murguia, D.J.) (noting that "while it is true that the ALJ did not give much weight to the medical examinations conducted by [certain doctors], that medical evidence was nonetheless in the record" and under Howard should have been considered as part of "case-wide evaluations" by state agency doctors); Robinson v. Astrue, No. CIV-S-08-2296-DAD, 2010 WL 3733993, at *4 (E.D. Cal. Sept. 21, 2010) (remanding because to extent ALJ relied on state-agency psychiatrists' evaluations, they were prepared two years before hearing and doctors did not consider evidence developed in those two years). Accordingly, this matter must be remanded so that Howard may be complied with.1
B. Remaining Issue
Plaintiff asserts that the ALJ erred by failing to account for Plaintiff's "cognition deficit" and "communication disorder." (J. Stip. at 8-12.) Because the Court finds that the ALJ erred in failing to obtain a complete case evaluation, it is not necessary for it to address that argument. See Vega, 2012 WL 1144407, at *6 (finding it unnecessary to address additional disputed issue in light of remand for compliance with Howard). On remand, the ALJ will necessarily reevaluate Plaintiff's impairments after obtaining a complete case evaluation.
VI. CONCLUSION
When error exists in an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (internal quotation marks omitted); Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Accordingly, remand, not an award of benefits, is the proper course in this case. See Strauss v. Comm'r of Soc. Sec. Admin., 635 F.3d 1135, 1136, 1138 (9th Cir. 2011) (remand for automatic payment of benefits inappropriate unless evidence unequivocally establishes disability). As noted above, on remand, the ALJ should obtain a complete case evaluation from an appropriate specialist and reassess Plaintiff's impairments in light of that evaluation.
ORDER
Accordingly, IT IS HEREBY ORDERED that (1) the decision of the Commissioner is REVERSED; (2) Plaintiff's request for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on all parties or their counsel.
