Opinion
Case No.: 6:17-cv-1677-AC
07-19-2019
JOHN T., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION
ACOSTA, Magistrate Judge :
John T. ("plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his applications for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI") under the Social Security Act ("Act"). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Based on a careful review of the record, the Commissioner's decision should be REVERSED and REMANDED for the immediate calculation and payment of benefits.
Procedural Background
Plaintiff applied for DIB and SSI on November 12, 2013, alleging disability as of January 1, 1971, due to back and leg pain, being a "slow learner, problems understanding," and "sharp pains in [his] chest." (Tr. 16, 224, 249.) His applications were denied initially and upon reconsideration. (Tr. 115-18.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and a hearing was held on June 1, 2016. (Tr. 36-93.) ALJ Steven A. De Monbreum issued a decision finding plaintiff not disabled on July 29, 2016. (Tr. 13-30.) The Appeals Council denied plaintiff's request for review on September 11, 2017, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.) This appeal followed.
Factual Background
Born in 1963, plaintiff was seven years old on the alleged onset date, and fifty-two years old at the time of the hearing. (Tr. 28.) He dropped out of high school in the eleventh grade. (Tr. 43.) Plaintiff previously worked as a forest firefighter and dishwasher. (Tr. 28.)
Standard of Review
The court must affirm the Commissioner's decision if it is based on proper legal standards and supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At step one, the Commissioner determines whether the claimant is engaged in "substantial gainful activity" ("SGA"). Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, he is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment, he is not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either individually or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, he is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can perform past relevant work, he is not disabled; if he cannot, the burden shifts to the Commissioner.
At step five, the Commissioner must establish the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
ALJ's Decision
The ALJ performed the sequential analysis, as noted above. At step one, the ALJ found plaintiff had engaged in SGA from 1998 to 1999, and in July and August 2008. (Tr. 18.) The ALJ further found there had been continuous twelve-month periods during which plaintiff had not engaged in SGA. (Tr. 19.) At step two, the ALJ determined plaintiff had the following severe impairments: degenerative disc disease; left ankle fracture, status post open reduction and internal fixation; substance use disorder; and organic brain syndrome. (Id.) At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (Tr. 19-22.)
The ALJ determined plaintiff had the residual functional capacity ("RFC") to perform "a reduced range of light work," with the following limitations:
He can lift and/or carry (including upward pulling) up to 20 pounds occasionally and 10 pounds frequently. He can stand and/or walk for about 6 hours in an 8-hour workday with normal breaks, and he can sit for about 6 hours in an 8-hour workday with normal breaks. He can occasionally climb ramps and stairs but can never climb ladders, ropes, or scaffolds. He can frequently balance. He can occasionally stoop, kneel, and crawl. He can understand, remember, and carry out only short, simple, routine job instructions, consistent with unskilled work. He can have only occasional interaction with the general public.(Tr. 22.)
At step four, the ALJ determined plaintiff was unable to perform his past relevant work. (Tr. 28). At step five, the ALJ found plaintiff could perform jobs existing in significant numbers in the national economy, including basket filler, garment sorter, and poultry boner. (Tr. 29.) Accordingly, the ALJ concluded plaintiff was not disabled under the Act. (Tr. 30.)
Discussion
Plaintiff argues: (1) the ALJ erred at step three by failing to find plaintiff intellectually disabled under Listing 12.05C; (2) the Appeals Council erroneously rejected the medical opinion of examining psychologist Scott Alvord, PsyD; (3) the ALJ failed to provide clear and convincing reasons for finding plaintiff's subjective symptom testimony inconsistent with the record; and (4) the ALJ failed to give germane reasons for discounting several lay witness statements. Because the first assignment of error is dispositive, the court declines to address the remainder of plaintiff's arguments.
I. Plaintiff Meets Listing 12.05C
Plaintiff argues the ALJ erred by finding he did not meet Listing 12.05C. A claimant is presumptively disabled and entitled to benefits if he or she meets or equals a listed impairment. To "meet" a listed impairment, a claimant must establish that his condition satisfies each element of the listed impairment in question. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir.1999).
Listing 12.05 provides in relevant part:
12.05 Intellectual disability: Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the development period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (effective May 24, 2016 to Sept. 28, 2016).
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
* * *
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function[.]
Thus, the test for whether a claimant's intellectual disability meets 12.05C is whether a claimant demonstrates: (1) a mental impairment shown by adaptive deficits with onset before age 22; (2) a valid verbal performance or full-scale IQ of 60 to 70; and (3) a physical or other mental impairment imposing an additional and significant work-related limitation of function. Bailey v. Colvin, No. 1:14-cv-00749-BR, 2015 WL 4488153, *11 (D. Or. July 22, 2015) (citing 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.05). Listing 12.05 does not require a formal diagnosis or medical finding of "mental retardation" but relies instead on valid IQ scores in conjunction with other evidence to establish "significantly subaverage general intellectual functioning." Pedro v. Astrue, 849 F. Supp. 2d 1006, 1011 (D. Or. 2011). "Adaptive functioning" describes "'how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, socioeconomic background, and community setting[.]'" Id. at 1011 (quoting American Psychiatric Ass'n Diagnostic & Statistical Manual of Mental Disorders 42 (4th ed. 2000, text revision).
The Commissioner's argument that the court should apply the updated version of the Listings, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.00(H)(3), 12.05C (effective Jan. 17, 2017), "because it is a clarification of the agency's policy, not a revision of it" is without merit. Def.'s Br. 4, n.1 (ECF No. 15); see also Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138-01, n.1, available at 2016 WL 5341732 (Sept. 26, 2016) ("We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions.").
With respect to the second element, plaintiff produced a full-scale IQ score of 60 at his March 2014 examination with neuropsychologist Mercedes Dickinson, PhD. (Tr. 370.) The validity of plaintiff's IQ score is not in dispute. Because the ALJ found plaintiff had additional severe impairments, the third requirement under Listing 12.05C is met as well. (Tr. 19.) Thus, the only element at issue here is the first one.
In discussing Listing 12.05C, the ALJ found that "[a]lthough the claimant alleges a long history of academic difficulties and participation in special education courses, there are no school records to support his claim of special education, nor is there any I.Q. testing conducted prior to the age of 22." (Tr. 21.) As to the ALJ's latter finding, "[a] showing of early onset for purposes of Listing 12.05C does not require clinical or IQ tests." Pedro, 849 F. Supp. 2d at 1010. Indeed, in response to concerns that satisfying the requirements of the introductory paragraph to Listing 12.05 with direct evidence would be "difficult for adults to establish," the Agency clarified that it "do[es] not necessarily require evidence from the developmental period to establish that the impairment began before the end of the developmental period." Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746-01, 50753, 50772, available at 2000 WL 1173632 (Aug. 21, 2000). Instead, the ALJ will "use judgment, based on current evidence, to infer when the impairment began." Id. at 50753 (emphasis added). In other words, "'a claimant may use circumstantial evidence to demonstrate adaptive functioning deficits, such as attendance in special education classes, dropping out of high school prior to graduation, difficulties in reading, writing or math, and low skilled work history.'" Bailey, 2011 WL 4488153 at *11 (quoting Pedro, 849 F. Supp. 2d at 1011) (additional citation omitted); cf. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (an ALJ may not reject a claimant's testimony "solely because it is not substantiated affirmatively" by objective evidence) (citations omitted).
Here, plaintiff has put forward ample circumstantial evidence indicating that his deficits in adaptive functioning manifested before the age of 22. For example, plaintiff was held back two grade levels and ultimately dropped out of high school. (Tr. 43, 250, 316, 368.) The ALJ found that "the record shows the claimant did not fail out of school, but chose to quit school in the eleventh grade to become a firefighter." (Tr. 21.) However, plaintiff's decision to drop-out of high school, in part because his classmates called him "stupid" and "retarded," and then subsequently entered the workforce as a seasonal wildland firefighter, does not establish that plaintiff did not experience any difficulty with adaptive functioning in school. (Tr. 59-60.) According to plaintiff, the only requirement to work for his firefighting company was the ability to hike three miles in under 45 minutes while wearing a 45-pound pack. (Tr. 50-51.)
The ALJ placed great emphasis on plaintiff's "30-year history as a firefighter"; however, plaintiff testified that his past employers knew about and accommodated his learning disabilities. (Tr. 24, 27, 61, 79-81.) For example, plaintiff needed three months of training and "extra help" from his employer to learn how to properly perform his dishwasher job. (Tr. 80-81.) He earned the nickname "Johnny Dangerous" because he "did dangerous things on fires that usually a regular person wouldn't probably want to do." (Tr. 62.) Notably, plaintiff's earnings rose to the level of "substantial gainful activity" for only two years and two months out of the entire 28 years of his employment history. See 20 C.F.R. §§ 404.1572, 416.972; (Tr. 18-19, 231.) If anything, plaintiff's "low-skilled [and sporadic] work history is consistent with plaintiff's other evidence demonstrating subaverage general intellectual functioning prior to age 22." Glenn v. Colvin, No. 3:12-cv-00886-AA, 2013 WL 3046871, at *3 (D. Or. June 11, 2013) (citation omitted); see also Conley v. Colvin, 274 F. Supp. 3d 1119, 1124 (D. Or. 2017) ("Possessing work history or the ability to perform low-skilled, unsophisticated work and some daily chores does not compel a finding that a claimant lacks deficits in adaptive functioning.").
More telling than plaintiff's insignificant past work activities is the fact that he did not move out of his parent's house until he was 37 years old, has never lived independently in his entire life, was unsuccessful in obtaining a high school equivalency degree, could not pass the driver's license test despite multiple attempts, and needed help from others with reading and writing. (Tr. 44-45, 72-78); see also Walker-Williams v. Berryhill, No. 3:16-cv-02133-AA, 2018 WL 921504, at *4 (D. Or. Feb. 15, 2018) (finding plaintiff met the first prong of 12.05C when she had been enrolled in special education classes, reported certain subjects were difficult, completed high school, and never lived independently); Pedro, 849 F. Supp. 2d. at 1011-14 (finding plaintiff who attended special education classes, graduated high school, was able to drive, lived independently, handled her own hygiene, struggled with reading and writing, had a low-skilled work history, and cared for her children had nonetheless put forward "ample circumstantial evidence demonstrating onset . . . prior to age 22."). Also compelling is plaintiff's full-scale IQ of 60. "True, the score was recorded after the developmental period, but 'a person's IQ is presumed to remain stable over time in the absence of any evidence of a change in a claimant's intellectual functioning.'" Maresh v. Barnhart, 438 F.3d 897, 900 (8th Cir. 2006) (quoting Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001)); see also Hodges v. Barnhart, 276 F.3d 1265, 1268-69 (11th Cir. 2001) ("IQ's remain fairly constant throughout life"); Brooks v. Astrue, 2012 WL 4739533, at *5 (D. Or. Oct. 3, 2012).
Nonetheless, the Commissioner argues that the ALJ properly relied on Dr. Dickerson's opinion that plaintiff had "no difficulties in maintaining adaptive activities such as meal preparation, grocery shopping, or independent living." (Tr. 371.) Dr. Dickerson's opinion, however, is contrary to the weight of the evidence. As discussed, plaintiff lived at home until he was 37 years old and has never lived independently. When grocery shopping, plaintiff occasionally needed help from his sister or a store employee to make sure he was paying a "good price" for an item. (Tr. 62-63.) Before his nutritional assistance benefits were deposited on a debit card, plaintiff did not know whether he received the correct change back when purchasing groceries. (Tr. 63.) Plaintiff also required help with making meals because he only knew how to cook on high heat and would sometimes forget to turn the stove off. (Tr. 64, 279.) In relying on Dr. Dickerson's opinion, the ALJ demanded far more of plaintiff than is required to satisfy the first prong of Listing 12.05C. "[T]he introductory paragraph of Listing 12.05 requires evidence that deficits in adaptive functioning exist, not evidence that a claimant has no adaptive functioning skills." McGrew v. Colvin, No. 3:13-cv-01909-SI, 2015 WL 1393291, at *7 (D. Or. Mar. 25, 2015). To meet this burden, a claimant need only provide "evidence demonstrating deficits in adaptive function during [the claimant]'s developmental period, that is, before age 22." Huber v. Astrue, No. CV10-8043-PCT-DGC, 2010 WL 4684021, at *4 (D. Ariz. Nov. 12, 2010). Besides the circumstantial evidence already discussed, the Commissioner acknowledges that "[t]he ALJ agreed that plaintiff described some credible difficulty due to his organic brain syndrome, following a head injury early in life." Def.'s Br. 4 (citing (Tr. 19)). "Listing 12.05 requires nothing more." Huber, 2010 WL 4684021, at *4.
The ALJ additionally found that the record did not show "mental incapacity evidenced by dependence upon others for personal needs," because plaintiff reported he was independent in his activities of daily living and "[n]either of the two reviewing psychologists . . . found that the claimant met or equaled Listing 12.05[.]" (Tr. 21.) Evidence that a claimant is dependent on others for personal needs, such as "toileting, eating, dressing, or bathing," is necessary to meet the requirements of Listing 12.05A, not 12.05C. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (effective May 24, 2016 to Sept. 28, 2016). Furthermore, the consultative reviewing psychologists never considered whether plaintiff's cognitive impairment met listing 12.05. (Tr. 109, 136.)
On balance, the court finds there is sufficient evidence to establish that plaintiff had deficits in adaptive functioning that initially manifested during the developmental period, and, therefore, that he satisfied the requirements of Listing 12.05C. No further proceedings would be useful because the record is fully developed and establishes plaintiff should have been found disabled by the ALJ at step three. See Harmam v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (holding that "the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). Accordingly, the court should find that remanding for an award of benefits is appropriate in this case. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).
The Commissioner argues that remanding this case for further administrative proceedings is the appropriate remedy due to the "significant conflict" between Dr. Dickerson's opinion and Dr. Alvord's opinion. Def.'s Br. 10. The ALJ never considered Dr. Alvord's opinion because it was submitted for the first time to the Appeals Council after the ALJ issued his decision. (Tr. 2.) Because the record that was before the ALJ demonstrates plaintiff satisfies the requirements of Listing 12.05C, "there are no outstanding issues that must be resolved before a determination of disability can be made." Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Accordingly, the Commissioner's argument is unavailing.
Recommendation
Based on the foregoing, the Commissioner's decision should be REVERSED and REMANDED for the immediate calculation and payment of benefits.
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
IT IS SO ORDERED
DATED this 19th day of July, 2019.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge