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Conley v. Colvin

United States District Court, D. Oregon

April 7, 2017

JENNIFER CONLEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          MICHAEL MCSHANE UNITED STATE DISTRICT JUDGE.

         Plaintiff Jennifer Conley filed her application for disability insurance benefits and supplemental security income benefits on September 28, 2011. Tr. 13[1] After a hearing, the administrative law judge (ALJ) issued a written decision finding Conley not disabled. Tr. 13-26.

         Conley 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.

         STANDARD OF REVIEW

         The 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 Cir. 1989).

         DISCUSSION

         The 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. Id.

         At step 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.

         Listing 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 function."

         The ALJ 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.[2] I disagree.

         A. Valid IQ Score

         An ALJ 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).

         Here, 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.

         B. Physical or Mental Impairment Imposing an Additional and ...


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