United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATE DISTRICT JUDGE.
Jennifer Conley filed her application for disability
insurance benefits and supplemental security income benefits
on September 28, 2011. Tr. 13 After a hearing, the
administrative law judge (ALJ) issued a written decision
finding Conley not disabled. Tr. 13-26.
brings this action for judicial review of the
Commissioner's decision denying her application for
disability insurance benefits and supplemental security
income benefits. This Court has jurisdiction under 42 U.S.C.
§§ 405(g) and 1383(c)(3). Because the ALJ erred in
failing to conclude Conley met the step three listing for
intellectual disability, the ALJ's decision is REVERSED.
reviewing court shall affirm the Commissioner's decision
if the decision is based on proper legal standards and the
legal findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm 'rfor
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
"Substantial evidence is '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.'" Hill v. Astrue, 698 F.3d
1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, the court reviews the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
decision. Davis v. Heckler, 868 F.2d 323, 326 (9th
Social Security Administration utilizes a five step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520 & 416.920. The
initial burden of proof rests upon the claimant to meet the
first four steps. If the claimant satisfies her burden with
respect to the first four steps, the burden shifts to the
Commissioner for step five. 20 C.F.R. § 404.1520. At
step five, the Commissioner's burden is to demonstrate
that the claimant is capable of making an adjustment to other
work after considering the claimant's residual functional
capacity (RFC), age, education, and work experience.
three, the ALJ determined that Conley had severe impairments
of a specific learning disorder, bipolar disorder, chronic
back pain, and obesity. Tr. 15. However, the ALJ determined
that these severe impairments did not meet one of the listed
impairments in 20 C.F.R. § 404, subpt. P, app 1. Tr. 16.
Specifically, the ALJ determined Conley did not meet the
criteria of listing 12.05. Tr. 17-18.
12.05 sets the standard for establishing an intellectual
disability. It states that "[i]ntellectual disability
refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment
before age 22." 20 C.F.R. 404 Subpart P, Appendix 1. In
addition to establishing the first prong, a claimant must
establish one of four requirements establishing the severity
level of the intellectual disability. See
12.05(A-D). At issue here is 12.05C, which requires "[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
found that Conley did not meet listing 12.05C because Conley
"does not have 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." Tr. 17. Further, the ALJ noted
that Conley has higher adaptive functioning than her IQ score
suggests because she has worked in the past, cares for her
autistic daughter, and performs daily chores. Tr. 18. The
Commissioner agues that the ALJ's conclusion was
reasonable and supported by substantial
evidence. I disagree.
Valid IQ Score
is free to reject a claimant's IQ score if it is invalid;
however, the ALJ must explicitly reject the IQ score and have
substantial evidence for doing so. Stokes v. Astrue,
2011 U.S. Dist. LEXIS 7154 at *25 (D. Or. Jan. 4, 2011). The
Ninth Circuit has not specifically addressed what evidence an
ALJ can rely on in rejecting an IQ score, but suggests that
the ALJ can rely on improper testing conditions or activities
that suggest a higher score. Thresher v. Astrue, 283
Fed.Appx. 473, 475 n.6 (9th Cir. 2008).
the ALJ noted that Conley "has a verbal IQ score of 70,
[but] her activities of daily living suggest that her
adaptive functioning is much higher than her IQ score
suggests." Tr. 18. The ALJ conflates the 12.05
introductory paragraph listing with the 12.05C IQ
requirement, which makes it unclear whether he is arguing
that Conley does not have deficits in adaptive functioning or
that Conley's activities prove her IQ score invalid. This
is not an explicit rejection of the validity of Conley's
IQ score. Stokes, 2011 U.S. Dist. LEXIS 7154 at *24
(stating that an ALJ "improperly rejected [a
claimant's] IQ scores because he never explicitly
commented on their validity."). This position is
bolstered by the fact that the Commissioner failed to present
any arguments in briefing about the ALJ rejecting the
validity of Conley's IQ score. In fact, the Commissioner
only presented an argument about adaptive functioning in
relation to Conley's IQ scores. Def s Reply 3-4, ECF No.
18. Since the ALJ failed to explicitly reject Conley's
verbal comprehension score of 70, she satisfies the first
requirement of 12.05C.
Physical or Mental Impairment Imposing an Additional and