United States District Court, D. Oregon, Portland Division
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Judge Sullivan issued a Findings and Recommendation  on
August 13, 2018, in which she recommends the Court reverse
the Commissioner's decision and remand for further
administrative proceedings. The matter is now before the
Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule
of Civil Procedure 72(b).
filed timely objections to the Magistrate Judge's
Findings and Recommendation. Pl.'s Obj., ECF 19.
Plaintiff objects to Judge Sullivan's recommendation that
the Court remand the case for further administrative
proceedings. Judge Sullivan concluded, and Defendant agreed,
that “[t]he record contains evidence that could support
or contradict a finding of onset before age
twenty-two.” F&R at 9. In support, Judge Sullivan
noted that “although plaintiff dropped out of school
after the eighth grade due to long-lasting difficulties with
school, and is illiterate, plaintiff also never received
special education classes.” Id. Plaintiff
argues, in response, that the “record is fully
developed and directs a finding that Plaintiff's low
intellectual capacity is a life-long impairment that
manifested in deficits in adaptive functioning prior to age
22.” Pl.'s Obj. at 1. When any party objects to any
portion of the Magistrate Judge's Findings and
Recommendation, the district court must make a de
novo determination of that portion of the Magistrate
Judge's report. 28 U.S.C. § 636(b)(1); Dawson v.
Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc).
12.05C has three requirements. One requirement is a
“significantly subaverage general intellectual
functioning with deficits in adaptive functioning [that]
initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment
before age 22.” 20 C.F.R. Part 404, Subpt. P, App'x
1 § 12.05(c). “The purpose of the introductory
paragraph of the Listing is to limit coverage to an innate
condition, rather than a condition resulting from a disease
or accident in adulthood.'” McGrew v.
Colvin, No. 3:13-cv-01909-SI, 2015 WL 1393291, at *5 (D.
Or. Mar. 25, 2015) (quoting Gomez v. Astrue, 695
F.Supp.2d 1049, 1061 (C.D. Cal. 2010)). Thus, the
introductory paragraph requires only “that deficits in
adaptive functioning exist, not evidence that a claimant has
no adaptive functioning skills.” Id. at *7. In
other words, the introductory paragraph does not inquire into
the severity of the deficits in adaptive functioning.
Id. at *5.
the existence of deficits in adaptive functioning, “[a]
claimant may use circumstantial evidence . . . 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.'”
Pedro v. Astrue, 849 F.Supp.2d 1006, 1011-12 (D. Or.
2011) (quoting Campbell v. Astrue, No.
1:09-CV-00465GSA, 2011 WL 444783, *17 (E.D. Cal. Feb. 8,
2011)). This district has repeatedly reaffirmed this use of
circumstantial evidence. See Clayton L. v.
Commissioner, 2018 WL 3090197 (D. Or. June 21, 2018)
(the court remanded for an immediate award of benefits where
plaintiff reported difficulties in concentration, memory, and
learning new tasks; could read and do math at a middle school
level; was enrolled in special education classes starting in
the seventh grade; did course work at various community
colleges but did not graduate because it was too difficult;
failed many classes; and worked in mostly unskilled positions
but also obtained a nurse's assistant certification
through a job corps program); Neiss v. Berryhill,
2018 WL 1609262 (D. Or. Apr. 2, 2018) (the court remanded for
an immediate award of benefits where plaintiff was enrolled
in special education classes for most of her life and held
back in the eighth grade; never got her driver's license
because she repeatedly failed the written test; and had a
history of low-skilled and sporadic work). While a plaintiff
may use enrollment in special education classes to show that
his or her adaptive functioning deficits onset before the age
of twenty-two, such enrollment is not necessary to a
Plaintiff has demonstrated through circumstantial evidence
that her adaptive functioning deficits onset before the age
of twenty-two. Plaintiff reported dropping out of school
after the eighth grade because she was uncomfortable around
people and did not know how to read or write. Tr. 246.
Plaintiff never obtained her GED, tr. 47, and there is no
indication she attempted any coursework at a community
college. She reported attempting a computer class through the
JOBS program at DHS but found it too difficult. Tr. 246. In
2013, testing determined she read at a preschool level, wrote
at a first-grade level, and needed assistance with all
paperwork. Tr. 249-50. Plaintiff's work history is not
only unskilled, but almost nonexistent: she reported one job
from 1999 where she worked as a caregiver for a relative for
$3, 018 per year. Tr. 27, 173, 188, 246, 383. Thus, although
Plaintiff was never enrolled in special education classes,
she has provided sufficient circumstantial evidence to
demonstrate that her adaptive functioning deficits onset
before the age of twenty-two. The record has been fully
courts have discretion under 42 U.S.C. § 405(g) to
remand for further administrative proceedings or to order
immediate payment of benefits. Harman v. Apfel, 211
F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038
(2000). Ordinarily, except in rare circumstances, remand for
further proceedings is appropriate. Treichler v.
Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100
(9th Cir. 2014). Where further proceedings would serve no
useful purpose, however, a court has discretion to remand for
immediate payment of benefits. Id.; Harman,
211 F.3d at 1179 (“[T]he decision whether to remand for
further proceedings turns upon the likely utility of such
case, the ALJ erred by concluding that Plaintiff was not
disabled at step three for meeting the requirements of
Listing 12.05C. The record is fully developed on this issue
and the evidence demonstrates that Plaintiff meets Listing
12.05C and is therefore “presumed disabled, and no
further inquiry is necessary.” Baxter v.
Sullivan, 923 F.2d 1391, 1395 (9th Cir. 1991). Remand
for additional proceedings would serve no purpose and
“would needlessly delay effectuating the primary
purpose of the Social Security Act, ” which is
“to give financial assistance to disabled persons. . .
.” Holohan v. Massanari, 246 F.3d 1195, 1210
(9th Cir. 2001). Accordingly, the Court reverses the
Commissioner's decision and remands for an immediate
award of benefits.
Court has also reviewed the pertinent portions of the record
de novo and finds no additional error in the
Magistrate Judge's Findings and Recommendation.
Court adopts in part Magistrate Judge Sullivan's Findings
and Recommendation . The Commissioner's decision is
reversed and remanded for an immediate award of benefits.