United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATE DISTRICT JUDGE.
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).
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”).
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.
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).
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
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.
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.
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.
argues that the ALJ erred because she meets the requirements
of Listing 12.05(C).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,
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