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Sigrid G. v. Commissioner of Social Security

United States District Court, D. Oregon

May 21, 2019

SIGRID G., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          MICHAEL MCSHANE UNITED STATE DISTRICT JUDGE.

         Plaintiff brings this action for judicial review of the Commissioner of Social Security's decision denying her application for Supplemental Security Income and Disability Insurance Benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         On July 24, 2012, Plaintiff filed an application for Supplemental Security Income and Disability Insurance Benefits. After a hearing, an Administrative Law Judge determined that she was not disabled under the Social Security Act. Plaintiff filed the instant appeal challenging that determination on November 2, 2017. The appeal was assigned to Magistrate Judge Thomas M. Coffin. On November 20, 2018, Judge Coffin issued a Findings and Recommendation (“F&R”).

         In his F&R, Judge Coffin recommended that I reverse and remand the case for further proceedings. Plaintiff timely filed objections and the matter is now before me. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). I review de novo all portions of an F&R subject to objection. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Bus. Machs. Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Upon review, I adopt Judge Coffin's F&R in part and, because Plaintiff satisfies the requirements of Listing 12.05(C), REVERSE the ALJ's decision and REMAND the case for immediate payment of benefits.

         STANDARD OF REVIEW

         A reviewing court shall affirm the decision of the Commissioner of Social Security (“Commissioner”) if her 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, the district court must review the administrative record as a whole, weighing both the evidence that supports and detracts from the decision of the Administrative Law Judge (“ALJ”). 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 then 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.

         In the present case, the ALJ found that Plaintiff was not disabled. She first determined that Plaintiff remained insured for Disability Insurance Benefits until June 30, 2010. Tr. 20. Next, at step one of the sequential evaluation, the ALJ determined that Plaintiff had not engaged in substantial gainful activity from her alleged onset date through her date last insured. Tr. 20. At step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative bilateral knee joint disease, obesity, intellectual disability, and adjustment disorder with anxiety. Tr. 20. At step three, the ALJ determined that Plaintiff did not meet or equal the requirements of any listed impairment in 20 C.F.R. pt. 404, subpt. P, app'x 1 (“Listing”). Tr. 23. The ALJ specifically found that Plaintiff did not meet Listing 1.02, 1.04, 12.05, or 12.06. Tr. 23.

         Before moving to step four, the ALJ found that Plaintiff had the RFC to perform sedentary work with certain non-exertional limitations. Tr. 29. Specifically, the ALJ found that, in addition to a number of exertional restrictions, Plaintiff was limited to simple, routine, and repetitive work tasks and to making simple work-related decisions. Tr. 29. At step four, relying on the testimony of a Vocational Expert, the ALJ found that Plaintiff was unable to perform past relevant work as a truck driver or bus driver. Tr. 34. At step 5, after considering her age, education, work experience, and RFC, the ALJ determined that Plaintiff was capable of performing jobs existing in significant numbers in the national economy, including wafer breaker, taper, and table worker. Tr. 35. Having made this determination, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act and did not qualify for benefits. Tr. 35.

         Plaintiff now challenges the ALJ's non-disability determination on multiple grounds. As relevant here, however, Plaintiff argues that the ALJ erred in finding that she did not meet the requirements of Listing 12.05(C) for intellectual disability. Because I find that the ALJ erred in failing to find Plaintiff disabled under Listing 12.05(C), I do not address Plaintiff's remaining allegations of error and remand the case for immediate payment of benefits.

         I. Listing 12.05(C).

         Plaintiff argues that the ALJ erred because she meets the requirements of Listing 12.05(C).[2]Listing 12.05 pertains to intellectual disabilities. See 20 C.F.R. pt. 404, subpt. P, app'x 1 § 12.05. To satisfy the Listing, a claimant must demonstrate “(1) subaverage intellectual functioning with deficits in adaptive functioning initially manifested before age 22; (2) an IQ score of 60 to 70; and (3) a physical or other mental impairment causing an additional and significant work-related limitation.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013). Although the Ninth Circuit has yet to address the issue, I interpret Listing 12.05 to require a showing of both current deficits in adaptive functioning and onset of the same before age 22. Accord Davidson v. Berryhill, No. 3:17-CV-00688-SB, 2018 WL 1710441, at *5 (D. Or. Apr. 9, 2018); Josh v. Berryhill, No. 6:16- cv-1798-SI, 2017 WL 4330780, at *5 (D. Or. Sept. 29, 2017); McGrew v. Colvin, No. 3:13-cv- 01909-SI, 2015 WL 1393291, at *6 (D. Or. Mar. 25, 2015).

         As an initial matter, the parties here agree that Plaintiff satisfies the second prong. Plaintiff submitted a valid Full Scale IQ (“FSIQ”) score of 65, tr. 474, which the ALJ accepted, tr. 26. It is therefore not in dispute that Plaintiff satisfies the IQ criteria for Listing 12.05(C). In addition, although the ALJ failed to address whether Plaintiff satisfied the third prong, Plaintiff plainly suffered from a qualifying impairment. “A finding of severe impairment at step two is a per se finding of impairment imposing additional and significant work-related limitation of function as employed in the [third] prong of Listing 12.05C.” Campbell v. Astrue, No. 1:09-cv-00465 GSA, 2011 WL 444783, at *18 (E.D. Cal. Feb. 8, 2011) (citations and quotations omitted) (collecting cases); Fanning v. Bowen, 827 F.2d 631, 633-34, 633 n.3 (9th Cir. 1987). At step two, the ALJ found that Plaintiff had several ...


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