United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATE DISTRICT JUDGE
brings this action under 42 U.S.C. § 405(g) to obtain
judicial review of the final decision of the Commissioner of
Social Security denying Plaintiff's claim for
supplemental security income and disability insurance
benefits. Because Plaintiff meets the requirements of Listing
12.05C, the ALJ's decision is REVERSED and this matter is
REMANDED for an award of benefits.
April 17, 2013, Plaintiff filed applications for supplemental
security income and disability insurance benefits, alleging
disability as of April 8, 2008. Tr. 94. After a hearing, the
administrative law judge (ALJ) found Plaintiff not disabled.
Tr. 21. Plaintiff argues the ALJ erred by failing to: 1)
consider Listing 12.05C at Step 3 of the sequential analysis;
2) fully credit the opinion of Dr. Jill Spendal, Psy.D.; 3)
give clear and convincing reasons for rejecting her
testimony; and 4) account for all of her limitations in the
hypothetical posed to the vocational expert. Pl.'s Br.
23-24. The Commissioner concedes the ALJ erred in failing to
consider Listing 12.05C but argues remand for further
proceedings is appropriate. Def.'s Br. 4.
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'r for
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, we review the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Cir. 1989). “If the evidence can reasonably support
either affirming or reversing, ‘the reviewing court may
not substitute its judgment' for that of the
Commissioner.” Gutierrez v. Comm'r of Soc. Sec.
Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
Social Security Administration uses 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 claimant satisfies his or her burden with respect to the
first four steps, the burden shifts to the Commissioner at
step five. 20 C.F.R. § 404.1520. At step five, the
Commissioner's burden is to demonstrate 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.
three, the ALJ determined that Plaintiff had the severe
impairments of obesity, posttraumatic stress disorder (PTSD),
major depressive disorder, and psoriasis/possible psoriatic
arthritis during the insured period; and obstructive sleep
apnea (OSA), borderline intellectual functioning (BIF), right
ventricular dysfunction, and myofascial pain syndrome after
the protective filing date; but that those impairments did
not meet or equal one of the listed impairments in 20 C.F.R.
Pt. 404, Subpt. P, App. 1. Tr. 23. Specifically, the ALJ
determined Plaintiff did not meet the criteria of Listing
12.02 for organic mental disorders, Listing 12.04 for
affective disorders, Listing 12.06 for anxiety-related
disorders, or Listing 12.09 for substance addiction
disorders. Tr. 27. Plaintiff argues that she meets Listing
12.05C for intellectual disability, which the parties agree
the ALJ did not address.
satisfy Listing 12.05C, a claimant must demonstrate: 1)
significantly subaverage intellectual functioning with
deficits in adaptive functioning manifested before age 22; 2)
a valid IQ score of 60 through 70; and 3) another mental or
physical impairment imposing additional and significant
limitation of function. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.05C; see also Kennedy v. Colvin, 738 F.3d
1172, 1174 (9th Cir. 2013). Both parties agree that Plaintiff
meets the third requirement because the ALJ found that
Plaintiff had several physical and mental impairments at Step
2 in the sequential analysis. However, the Commissioner
contends that the record fails to show that Plaintiff
manifested deficits in adaptive functioning before age 22 and
that it is uncertain whether Plaintiff has a valid IQ score
of 60 through 70.
Plaintiff has a valid IQ between 60-70.
12.05C requires Plaintiff to establish that she has “a
valid verbal, performance, or full scale IQ of 60 through
70.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.05C. “Where more than one IQ is customarily derived
from the test administered, e.g., where verbal, performance,
and full scale IQs are provided in the Wechsler series, we
use the lowest of these in conjunction with 12.05.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(c).
Jill Spendal, Psy.D. conducted a psychological assessment of
Plaintiff in February 2013. Tr. 430-43. Dr. Spendal
administered the Wechsler Adult Intelligence Test (WAIS-IV),
and noted Plaintiff functioned in the 1st percentile for Full
Scale IQ, with a score of 65. Tr. 434. The Commissioner
argues that it is unclear whether Plaintiff's full scale
IQ falls within the 60-70 range necessary for Listing 12.05C,
because the Dr. Spendal indicated Plaintiff's true
intellectual functioning was more likely in the range between
70 and 84. Def.'s Br. 6. The Commissioner's argument
fails because the ALJ found Plaintiff's testing scores,
as administered by Dr. Spendal, to be valid. Tr. 36.
Additionally, Dr. Spendal did not express any doubt as to the
validity of Plaintiff's verbal comprehension score of 70.
Therefore, even if the ALJ did not accept Plaintiff's
full scale IQ score of 65, Plaintiff's verbal
comprehension score of 70 qualifies under the second
requirement of Listing 12.05C. Tr. 434.
Plaintiff has deficits in adaptive functioning that