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INA V. v. Berryhill

United States District Court, D. Oregon

November 13, 2018

INA V.[1], Plaintiff,
NANCY A. BERRYHILL, Acting COMMISSIONER OF Social Security, Defendant.



         Plaintiff 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.


         On 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.


         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'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. 1996)).


         The 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.

         At step 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.

         To 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.

         A. Plaintiff has a valid IQ between 60-70.

         Listing 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).

         Dr. 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.[2]

         B. Plaintiff has deficits in adaptive functioning that ...

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