FILED
NOT FOR PUBLICATION APR 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHELE LINETTE MATTISON, on No. 10-56754
behalf of her minor child K.A,
D.C. No. 5:10-cv-00097-RZ
Plaintiff - Appellant,
v. MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Ralph Zarefsky, Magistrate Judge, Presiding **
Submitted May 7, 2012 ***
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Michele Mattison appeals pro se on behalf of her minor child, K.A., who
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
alleged disability based on severe asthma. The Commissioner of Social Security
denied K.A.’s application for supplemental security income under Title XVI of the
Social Security Act. The district court affirmed the Commissioner’s decision. We
have jurisdiction under 28 U.S.C. § 1291 and we affirm.
We review de novo a district court’s judgment upholding the denial of social
security benefits. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We
must affirm the denial of benefits unless it is based on legal error or the findings of
fact are not supported by substantial evidence. Valentine v. Comm’r of Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009).
The ALJ found that K.A.’s condition did not meet the regulatory criteria for
presumptively disabling asthma under 20 C.F.R. Pt. 404, Subpt. P, Appx 1
§ 103.03 (“Listing 103.03”).
The ALJ then evaluated K.A.’s condition under the functional equivalence
test of 20 C.F.R. § 416.926a for determining whether a person under the age of 18
is disabled. This test requires an assessment of the claimant’s ability to function in
six domains of functioning: acquiring and using information; attending and
completing tasks; interacting and relating with others; moving about and
manipulating objects; caring for self; and health and physical well-being. 20
C.F.R. § 416.926a(b)(1). A claimant is disabled if the evidence shows marked
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limitation in two domains, or extreme limitation in one. 20 C.F.R. § 416.926a(a);
SSR 09-1p, 2009 WL 396031 *1. The ALJ concluded that K.A.’s asthma resulted
in marked impairment in only one domain of functioning, viz. the domain for
health and physical well-being.
Mattison challenges the ALJ’s decision on three grounds. First, she
contends the ALJ failed to obtain and consider certain medical records in violation
of his duty to fully develop the record. Second, she contends the ALJ’s reasons for
discounting the opinion of K.A.’s treating physician were not supported by
substantial evidence. Third, she contends the ALJ improperly evaluated the
statements of a health aide at the school K.A. attended.
1. Development of the Record
With her reply brief, Mattison, who was represented by counsel at the
hearing and before the district court, submitted progress notes and pulmonary
function test results reflecting K.A.’s treatment, which Mattison alleges the ALJ
failed to obtain. A reviewing court may remand a case for the Commissioner to
consider new evidence that is material. Mayes v. Massanari, 276 F.3d 453, 461-62
(9th Cir. 2001). Evidence is material only if there is a “reasonable possibility that
the new evidence would have changed the outcome” if it had been before the ALJ.
Id. at 462; Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir.
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1984). We consider the additional evidence submitted with Mattison’s reply brief
to determine whether it is material.
Mattison contends the additional medical evidence includes forced
expiratory volume test (“FEV1”) values that satisfy the criteria for Listing 103.03.
In fact, the additional medical evidence Mattision submitted shows that K.A.’s
FEV1 values exceeded the listing level while she was taking appropriate
medications. There were a few infrequent low FEV1 values but these did not show
a disabling impairment that persisted for a continuous period of at least 12 months.
20 C.F.R. §§ 404.1509, 416.909. Because the medications improved K.A.’s FEV1
values above the listing level, K.A. did not satisfy the listing criteria. See Warre v.
Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (impairments
that are effectively controlled by medication are not disabling). The additional
evidence submitted with Mattison’s Reply brief only fortifies the ALJ’s
conclusions regarding the listing criteria.
Mattison also contends the additional medical evidence supports a disability
finding under the functional equivalence test described previously. The ALJ found
that K.A.’s asthma resulted in marked impairment only in the domain for health
and physical well-being. Mattison contends the additional medical evidence
supports marked impairment in a second domain of function involving moving
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about and manipulating objects. The domain for moving about and manipulating
objects considers limitations in “gross and fine motor skills.” 20 C.F.R. §
416.926a(j). The domain for physical health and well being covers limitations
such as shortness of breath, weakness, lack of stamina, fatigue, and side effects of
asthma medications. 20 C.F.R. § 416.926a(l)(1). The additional medical evidence
focuses on K.A.’s respiratory function and does not address motor function.
Accordingly, the ALJ’s failure to obtain the additional medical evidence was
harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (an error is
harmless if, looking at the record as a whole, the error does not alter the outcome
of the case); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 and
n. 4 (9th Cir. 2008) (an error is harmless if the ALJ’s determination remains
supported despite the error).
To the extent Mattison contends the ALJ should have engaged in further
development of the record by recontacting K.A.’s physicians or ordering further
evaluation, the argument is unpersuasive. An ALJ’s duty to conduct further
inquiry is triggered only when the evidence is ambiguous or when the
administrative record is inadequate to allow for proper evaluation of the disability
claim. Mayes, 276 F.3d at 459-60; Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th
Cir. 2001). Neither condition is present here.
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2. Treating Physician’s Opinion
Mattison contends the additional evidence submitted with her reply brief
undermines the ALJ’s reasons for discounting the opinion of David Bailey, M.D.
Even if she were correct, however, Dr. Bailey’s opinion would only fortify the
ALJ’s determination that K.A. suffered from marked impairment in only the
domain for health and physical well-being.
Dr. Bailey opined that K.A.’s asthma prevented her from engaging in
vigorous activities, such as running, weight lifting, and participating in team sports.
Such limitations based on respiratory impairment fall squarely within the domain
for health and physical well-being. 20 C.F.R. § 416.926a(l). Because Dr. Bailey
did not address limitations attributable to K.A.’s gross or fine motor function, his
opinion does not support marked limitation in the domain for moving about and
manipulating objects. 20 C.F.R. § 416.926a(j). Accordingly, even if the ALJ
should have given Dr. Bailey’s statements greater weight, the error was harmless
because Dr. Bailey’s opinion only strengthens the ALJ’s determination. See
Molina, 674 F.3d at 1115; Carmickle, 533 F.3d at 1162-63.
3. Statement of School Health Aide
The ALJ provided germane reasons for discounting the statement of the
health aide at the school K.A. attended. Valentine, 574 F.3d at 694. The health
6 10-56754
aide said K.A.’s asthma was debilitating, but school records showed that K.A.
functioned well in all areas other than vigorous physical activity.
In addition, like Dr. Bailey’s statements, the health aide’s statement
describes only limitations from asthma falling within the domain of health and
physical well-being. Giving her statement greater weight would only lend added
support for the ALJ’s determination. Accordingly, even if the ALJ should have
given the health aide’s statement greater weight, the error was harmless. Molina,
674 F.3d at 1115, Carmickle, 533 F.3d at 1162.
In conclusion, if Mattison were to prevail on all of her claimed errors, and
all the evidence she relies on were fully credited, it would only fortify the ALJ’s
conclusion that K.A. has marked impairment in only one of the six factors used in
the functional equivalence test.
AFFIRMED.
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