Ernold C. Jackson v. Michael J. Astrue, No. 2:2008cv01623 - Document 21 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. (READ ATTACHED FOR DETAILS) (esa)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ERNOLD C. JACKSON, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 08-1623 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. On March 12, 2008, plaintiff Ernold C. Jackson ( plaintiff ) filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ).1 The /// 27 28 1 Plaintiff also filed a response to Defendant s Motion. 1 1 Court has taken both motions under submission without oral argument. See Fed. 2 R. Civ. P. 78; L.R. 7-15; March 12, 2008 Case Management Order, ¶ 5. 3 Based on the record as a whole and the applicable law, the decision of the 4 Commissioner is REVERSED AND REMANDED for further proceedings 5 consistent with this Memorandum and Opinion and Order of Remand because the 6 Administrative Law Judge ( ALJ ) failed adequately to consider whether plaintiff 7 met Listing 12.05C. 8 II. APPLICABLE LEGAL STANDARDS 9 A. 10 Sequential Evaluation Process To qualify for disability benefits, a claimant must show that he is unable to 11 engage in any substantial gainful activity by reason of a medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of at least twelve 14 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 15 § 423(d)(1)(A)). The impairment must render the claimant incapable of 16 performing the work he previously performed and incapable of performing any 17 other substantial gainful employment that exists in the national economy. Tackett 18 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 19 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 20 sequential evaluation process:2 21 (1) 22 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 23 24 25 26 27 28 2 When confronted with a disabled claimant who abuses alcohol and drugs, the ALJ also must determine whether the claimant would still be disabled if the claimant stopped using alcohol and drugs. See Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001); see also Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). Under social security law, a claimant, even though disabled, is not considered disabled if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner s determination that the individual is disabled. 42 U.S.C. § 1382c(a)(3)(J). 2 1 (2) Is the claimant s alleged impairment sufficiently severe to limit 2 his ability to work? If not, the claimant is not disabled. If so, 3 proceed to step three. 4 (3) Does the claimant s impairment, or combination of 5 impairments, meet or equal an impairment listed in 20 C.F.R. 6 Part 404, Subpart P, Appendix 1? If so, the claimant is 7 disabled. If not, proceed to step four. 8 (4) perform his past relevant work?3 If so, the claimant is not 9 10 11 Does the claimant possess the residual functional capacity to disabled. If not, proceed to step five. (5) Does the claimant s residual functional capacity, when 12 considered with the claimant s age, education, and work 13 experience, allow him to adjust to other work that exists in 14 significant numbers in the national economy? If so, the 15 claimant is not disabled. If not, the claimant is disabled. 16 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 17 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 18 The claimant has the burden of proof at steps one through four, and the 19 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 20 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 21 (claimant carries initial burden of proving disability). 22 B. 23 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 24 benefits only if it is not supported by substantial evidence or if it is based on legal 25 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 26 27 28 3 Residual functional capacity is what [one] can still do despite [one s] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. § 416.945(a). 3 1 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 2 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 3 mind might accept as adequate to support a conclusion. Richardson v. Perales, 4 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 5 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 6 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 7 To determine whether substantial evidence supports a finding, a court must 8 consider the record as a whole, weighing both evidence that supports and 9 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 10 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 11 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 12 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 13 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 14 III. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 15 DECISION 16 On August 12, 2005, plaintiff filed an application for Supplemental Security 17 Income benefits. (Administrative Record ( AR ) 99-101). Plaintiff asserted that 18 he became disabled on January 1, 2001, due to mental retardation. (AR 99, 105). 19 The ALJ examined the medical record and, on June 13, 2007, held a hearing at 20 which a medical expert and a vocational expert testified.4 (AR 228-262). 21 Although plaintiff s counsel was present, plaintiff did not appear at the June 13, 22 2007 hearing. (AR 230). 23 On July 11, 2007, the ALJ determined that plaintiff was under a disability, 24 but that a substance abuse disorder was a contributing factor material to such 25 26 27 28 4 The ALJ initially held a hearing on December 7, 2006, at which plaintiff appeared and sought a continuance to obtain representation. (AR 223-27). The ALJ continued the matter to March 13, 2007. (AR 263-66). The March 13, 2007 hearing was also continued at plaintiff s request so that his attorney, who was then unavailable, could attend. (AR 263-66). 4 1 determination. (AR 18, 32). Accordingly, the ALJ determined that plaintiff had 2 not been disabled, as defined in the Social Security Act, through the date of the 3 decision. (AR 18, 32). Specifically, the ALJ found: (1) without considering the 4 materiality of plaintiff s substance use, plaintiff suffered from the following severe 5 impairments: polysubstance abuse, borderline intellectual functioning, and 6 depression (AR 20); (2) if plaintiff stopped the substance use, he would continue 7 to have a severe impairment or combination of impairments (AR 26); (3) without 8 considering the materiality of plaintiff s substance use, plaintiff s impairments or 9 combination of impairments, did meet or medically equal one of the listed 10 impairments (AR 25-26); (4) if plaintiff stopped the substance use, plaintiff s 11 impairments or combination of impairments, would not meet or medically equal 12 one of the listed impairments (AR 26-28); (5) if plaintiff stopped the substance 13 use, he would have the residual functional capacity to perform a full range of work 14 at all exertional levels but would have certain nonexertional limitations;5 15 (6) plaintiff did not have past relevant work, thus the residual functional capacity 16 to perform her past relevant work was not an issue (AR 31); (7) if plaintiff stopped 17 substance use, there would be a significant number of jobs in the national 18 economy that plaintiff could perform, specifically a vehicle cleaner and hand 19 packager (AR 31-32); and (8) plaintiff was not fully credible. (AR 30). 20 The Appeals Council denied plaintiff s application for review. (AR 6-8). 21 22 5 Specifically, the ALJ determined that plaintiff: (a) would have no limits for 23 understanding, remembering, and carrying out simple instructions; (b) would be able to 24 occasionally understand, remember, and carry out detailed instructions; (c) would not be able to follow complex instructions; (d) would have no limits for making simple judgments or work- 25 related decisions; (e) would be able to occasionally make detailed judgments or work-related 26 decisions; (f) would not be able to make complex judgment or work-related decisions; (g) would not be able to have contact with the public; (h) would be able to have occasional contact with 27 supervisors and coworkers; (i) would be able to maintain average productivity for simple, repetitive tasks; (j) would not be able to work at unprotected heights; (k) would not be able to 28 work under hazardous conditions; and (l) would need to work in a job environment with no more than occasional changes in the environment, where these changes were only simple in character (AR 28). 5 1 IV. DISCUSSION 2 A. 3 4 A Remand Is Appropriate Due to the ALJ s Assessment That Plaintiff Did Not Meet or Equal Listing 12.05C Plaintiff contends that the ALJ s finding that plaintiff did not meet Listing 5 12.05C was inconsistent with the ALJ s finding that plaintiff suffered from the 6 severe impairments of borderline intellectual functioning and depression. 7 (Plaintiff s Motion at 3). For the reasons discussed below this Court concludes 8 that a remand on this basis is appropriate. 9 10 1. Pertinent Law An impairment matches a listing if it meets all of the specified medical 11 criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Tackett, 180 F.3d at 1098. 12 An impairment that manifests only some of the criteria, no matter how severely, 13 does not qualify. Sullivan, 493 U.S. at 530; Tackett, 180 F.3d at 1099. An 14 unlisted impairment or combination of impairments is equivalent to a listed 15 impairment if medical findings equal in severity to all of the criteria for the one 16 most similar listed impairment are present. Sullivan, 493 U.S. at 531. 17 In assessing whether an impairment medically equals a listing, the ALJ is to 18 consider all relevant evidence in the case record about the claimant s impairment 19 and its effect on the claimant, as well as the opinion given by one or more medical 20 or psychological consultants designated by the Commissioner. 20 C.F.R. 21 § 416.926(c). Although the ALJ must consider the opinion of such a consultant on 22 the issue of whether a claimant s impairment meets or equals a listing, the final 23 responsibility for deciding medical equivalence rests with the Administrative Law 24 Judge. 20 C.F.R. §§ 416.926(e), 416.927(e)(2). 25 In order to be considered disabled under Listing 12.05, for mental 26 retardation, a claimant must show the following: 27 /// 28 /// 6 1 12.05 Mental Retardation: Mental retardation refers to 2 significantly subaverage general intellectual functioning with deficits 3 in adaptive functioning initially manifested during the developmental 4 period; i.e., the evidence demonstrates or supports onset of the 5 impairment before age 22. 6 7 The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. 8 .... 9 C. A valid verbal, performance, or full scale IQ of 60 10 through 70 and a physical or other mental impairment 11 imposing an additional and significant work-related 12 limitation of function; 13 .... 14 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. 15 16 2. Pertinent Facts On November 8, 2005, plaintiff came to Kedren Community Mental Health 17 Center ( Kedren CMHC ) with complaints of sadness, poor sleep, poor appetite, 18 occasional thoughts of dying, withdrawn behavior, irritability, and visual 19 hallucinations. (AR 209). He reported that he had been smoking marijuana since 20 the age of twelve, he currently smoked it once a week, and he did not want to stop 21 smoking it. (AR 210). Plaintiff also stated that he drank a 40 oz. every other 22 day. (AR 210). Plaintiff was diagnosed with cannabis dependence and major 23 depressive disorder, recurrent with psychotic features. (AR 213). 24 On November 9, 2005, Dr. Ahmad Riahinejad, a clinical psychologist, 25 conducted a consultative psychological evaluation at the request of the Social 26 Security Administration. (AR 148-152). Dr Riahinejad reported that plaintiff 27 stated the following: He had had difficulty understanding what people told him 28 ever since he was a child. (AR 148). He drank forty ounces of beer and smoked marijuana on a daily basis. (AR 149). He had completed high school where he 7 1 attended special education classes. (AR 149). He needed help with making 2 meals, shopping, and doing household chores, but not with dressing, bathing, or 3 walking. (AR 149). 4 Dr. Riahinejad reported that IQ tests showed that plaintiff s verbal IQ was 5 69, his performance IQ was 69, and his full scale IQ was 66. (AR 151). The 6 doctor diagnosed plaintiff with polysubstance abuse and borderline intellectual 7 functioning. (AR 152). Dr. Riahinejad opined that plaintiff (i) could understand, 8 remember, and carry out simple, repetitive instructions without much difficulty; 9 (ii) would have significant difficulty understanding, remembering, and carrying 10 out complex and detailed instructions; (iii) could accept instructions from a 11 supervisor; (iv) could relate with coworkers; (v) could have difficulty performing 12 in a fast-paced work environment due to his slightly slow motor speed; and 13 (vi) had no problem with persistence. (AR 152). 14 On April 13, 2006, plaintiff returned to Kendren CMHC with complaints of 15 depression, feelings of hopelessness, being withdrawn/isolated, thoughts of dying, 16 irritability, poor sleep, and visual hallucinations. (AR 201). He was diagnosed 17 with marijuana dependence and major depressive disorder, recurrent with 18 psychotic features. (AR 204). 19 On February 16, 2007, Dr. Elena Kvichko, plaintiff s treating psychiatrist, 20 completed a Mental Impairment Questionnaire. (AR 185-90). Dr. Kvichko 21 reported that plaintiff had been seen one to two times per month since April 13, 22 2006. She noted that plaintiff had been diagnosed with schizophrenia, paranoid 23 type, and had been prescribed Seroquel and Trazodone. (AR 185). Dr. Kvichko 24 generally opined that plaintiff would be unable to meet the competitive standards 25 to perform unskilled work, reasoning: 26 /// 27 /// 28 /// 8 1 [Plaintiff] can become easily distracted and confused. He experiences 2 auditory hallucinations and is suspicious of others. [Plaintiff] may 3 become easily confused and agitated in stressful situations. He 4 displays poor communication, poor impulse control and mistrust of 5 others. 6 (AR 187). Dr. Kvichko also concluded that plaintiff would miss more than four 7 days of work per month due to his impairment. (AR 190). She further opined as 8 to plaintiff s functional limitations, that plaintiff had (i) moderate restriction of 9 activities of daily living; (ii) marked difficulties in maintaining social functioning; 10 (iii) marked difficulties in maintaining concentration, persistence, or pace; and 11 (iv) experienced one to two episodes of decompensation within a twelve month 12 period, each of at least two weeks duration.6 (AR 189). 13 On March 23, 2007, Dr. Kvichko completed a Mental Residual Functional 14 Capacity Questionnaire in which she essentially offered the same opinions as 15 contained in her February 16, 2007 Mental Impairment Questionnaire. 16 17 3. Analysis As noted above, plaintiff contends that the ALJ s finding that plaintiff did 18 not meet Listing 12.05C was inconsistent with the ALJ s finding that plaintiff 19 suffered from the severe impairments of borderline intellectual functioning and 20 depression. (Plaintiff s Motion at 3). This Court concludes that a remand on this 21 basis is appropriate. 22 The ALJ found that even if plaintiff stopped using drugs or alcohol, he 23 would have the severe impairments of borderline intellectual functioning and 24 25 6 The ALJ characterized Dr. Kvichko s opinions regarding the four categories of 26 functional limitations as such doctor s Paragraph B opinions. (AR 26). As Dr. Kvichko did 27 not refer to plaintiff s substance use in her assessments, the ALJ only credited her Paragraph B 28 opinions as an assessment that did not take into consideration the materiality of plaintiff s substance use. (AR 26). 9 1 depression. (AR 26). The ALJ also credited the IQ tests conducted by consulting 2 examiner Dr. Riahinejad (seemingly irrespective of any impact from substance 3 use), which reflected that plaintiff s verbal, perform and full scale IQs were 4 between 60 and 70. Despite the foregoing, the ALJ found that if plaintiff stopped 5 the substance use, plaintiff would not meet the criteria of Listing 12.05C (i.e., a 6 valid verbal performance, or full scale IQ of 60 through 70 and a physical or other 7 mental impairment imposing an additional and significant work-related limitation 8 of function) because [t]he evidence does not indicate that [plaintiff] has any other 9 mental impairment that would impose additional and significant work-related 10 limitation in function. (AR 28). 11 Listing 12.00 provides that under Listing 12.05C, [the Commissioner] will 12 assess the degree of functional limitation the additional impairment(s) imposes to 13 determine if it significantly limits [the claimant s] physical or mental ability to do 14 basic work activities, i.e., is a severe impairment(s), as defined in [section] . . . 15 416 .920(c). If the additional impairment(s) does not cause limitations that are 16 severe as defined in [section] . . . 416.920(c), [the Commissioner] will not find 17 that the additional impairment(s) imposes an additional and significant 18 work-related limitation of function, even if [the claimant is] unable to do [his or 19 her] past work because of the unique features of that work. 20 C.F.R. Part 404, 20 Subpart P, Appendix 1, § 12.00A. Section 416.920(c) addresses a finding of a 21 severe impairment under step two of the sequential evaluation process, and states 22 that a severe impairment is one which significantly limits the claimant s physical 23 or mental ability to perform basic work activities. Id. The Ninth Circuit has held 24 that the test is whether the effect of the additional impairment on the claimant s 25 ability is more than slight or minimal. Fanning v. Bowen, 827 F.2d 631, 633 26 (9th Cir. 1987). 27 In this case, the ALJ specifically found that in addition to borderline 28 intellectual functioning, plaintiff suffered from the severe impairment of 10 1 depression. (AR 26). By finding plaintiff s depression to be severe, the ALJ 2 necessarily concluded that this impairment had more than a minimal effect on 3 [plaintiff s] ability to work. Webb v. Barnhart, 433 F. 3d 683, 687 (9th Cir. 4 2005). However, the ALJ failed to resolve the apparent inconsistency between his 5 finding that plaintiff s depression was severe and his finding that plaintiff did not 6 have any other mental impairment that would impose an additional and significant 7 work-related limitation. Although the ALJ might nonetheless have determined 8 that plaintiff s depression did not impose a significant limitation that is separate 9 and distinct from the limitations caused by his borderline intellectual functioning, 10 the Court cannot so conclude on this record. 11 Defendant argues that plaintiff has not established even the basic criteria for 12 Listing 12.05C in that plaintiff must first demonstrate an onset of the deficient 13 intellectual functioning before the age of twenty-two. (Defendant s Motion at 4). 14 This argument is unavailing. The ALJ did not state that plaintiff failed to meet or 15 equal listing 12.05C on this basis. This Court is constrained to review the reasons 16 cited by the ALJ. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 17 Moreover, several circuits have held that valid IQ tests create a rebuttable 18 presumption of a fairly constant IQ throughout a claimant s life. See Hodges v. 19 Barnhart, 276 F.3d 1265, 1268 (11th Cir. 2001) (holding that absent evidence of 20 sudden trauma that can cause retardation, the IQ tests create a rebuttable 21 presumption of a fairly constant IQ throughout [a claimant s] life ); see also 22 Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001) ( [A] person s IQ is presumed 23 to remain stable over time in the absence of any evidence of a change in a 24 claimant s intellectual functioning. ); Guzman v. Bowen, 801 F.2d 273, 275 (7th 25 Cir. 1986) (holding that a claimant s IQ relates back and does not just reflect a 26 new occurrence). The Court finds the reasoning of the Seventh, Eighth, and 27 Eleventh circuits to be persuasive. Furthermore, the ALJ opined that plaintiff 28 would meet Listing 12.05D if the materiality of plaintiff s substance abuse was not 11 1 considered. (AR 25-26). Thus, the ALJ presumably found that plaintiff 2 established the mental impairment prior to the age of twenty-two. 3 For the foregoing reasons, the ALJ s adverse step three finding constitutes 4 error. This case must be remanded for further consideration and clarification on 5 the ALJ s step three finding. 6 V. CONCLUSION7 7 For the foregoing reasons, the decision of the Commissioner of Social 8 Security is reversed in part, and this matter is remanded for further administrative 9 action consistent with this Opinion.8 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 DATED: December 11, 2008 12 ____________/s/_____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s decision except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 8 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 12

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