Alan James Frear v. Michael J Astrue, No. 2:2012cv04532 - Document 15 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth: (See document for details.) IT IS ORDERED that judgment be enteredAFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (rla)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 ALAN JAMES FREAR, 10 Plaintiff, 11 vs. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) Case No. CV 12-4532-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security Supplemental Security 20 Income benefits ( SSI ). The parties consented to the 21 jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 22 28 U.S.C. § 636(c). The matter is before the Court on the 23 parties Joint Stipulation, filed January 22, 2013, which the 24 Court has taken under submission without oral argument. For the 25 reasons stated below, the Commissioner s decision is affirmed and 26 this action is dismissed. 27 II. BACKGROUND 28 Plaintiff was born on December 22, 1955. 1 (Administrative 1 Record ( AR ) 53.) He finished high school (AR 110), though 2 there is some debate over whether he did so while enrolled in 3 special education classes (compare AR 39 (Plaintiff testifying 4 that he took special education classes during high school in 5 like math, history, English ) with AR 110 (disability form 6 indicating that Plaintiff was not enrolled in special education 7 classes during high school)).1 He is homeless (AR 128) and has 8 not worked since the early 1990s at the latest (AR 107). 9 Plaintiff filed an application for SSI benefits on May 30, 10 2008 (AR 89), claiming that he had been disabled since August 1, 11 1996 (AR 102), on account of dyslexia/bad back/can t read (AR 12 107). After Plaintiff s application was denied, he requested a 13 hearing before an ALJ. (AR 46.) A hearing was held on January 14 5, 2010, at which Plaintiff, who was represented by counsel, 15 appeared and testified. (AR 31, 37-40.) In a written decision 16 issued on February 24, 2010, the ALJ determined that Plaintiff 17 was not disabled. (AR 28.) On April 9, 2012, the Appeals 18 Council denied Plaintiff s request for review. (AR 1.) This 19 action followed. 20 III. STANDARD OF REVIEW 21 Pursuant to 42 U.S.C. § 405(g), a district court may review 22 the Commissioner s decision to deny benefits. The ALJ s findings 23 and decision should be upheld if they are free of legal error and 24 are supported by substantial evidence based on the record as a 25 whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. 26 Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 27 1 Plaintiff s high school records were apparently no (AR 87.) 28 longer available. 2 1 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 2 evidence as a reasonable person might accept as adequate to 3 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 4 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 6 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 7 882 (9th Cir. 2006)). To determine whether substantial evidence 8 supports a finding, the reviewing court must review the 9 administrative record as a whole, weighing both the evidence that 10 supports and the evidence that detracts from the Commissioner s 11 conclusion. 12 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 13 or reversing, the reviewing court may not substitute its 14 judgment for that of the Commissioner. Id. at 720-21. 15 IV. THE EVALUATION OF DISABILITY 16 People are disabled for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or which has lasted, or is expected 20 to last, for a continuous period of at least 12 months. 42 21 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 22 (9th Cir. 1992). 23 A. 24 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 25 assessing whether a claimant is disabled. 20 C.F.R. 26 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 27 1995) (as amended Apr. 9, 1996). In the first step, the 28 Commissioner must determine whether the claimant is currently 3 1 engaged in substantial gainful activity; if so, the claimant is 2 not disabled and the claim must be denied. § 416.920(a)(4)(i). 3 If the claimant is not engaged in substantial gainful activity, 4 the second step requires the Commissioner to determine whether 5 the claimant has a severe impairment or combination of 6 impairments significantly limiting his ability to do basic work 7 activities; if not, a finding of not disabled is made and the 8 claim must be denied. § 416.920(a)(4)(ii). If the claimant has 9 a severe impairment or combination of impairments, the third 10 step requires the Commissioner to determine whether the 11 impairment or combination of impairments meets or equals an 12 impairment in the Listing of Impairments ( Listing ) set forth at 13 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 14 presumed and benefits are awarded. § 416.920(a)(4)(iii). If the 15 claimant s impairment or combination of impairments does not meet 16 or equal an impairment in the Listing, the fourth step requires 17 the Commissioner to determine whether the claimant has sufficient 18 residual functional capacity ( RFC )2 to perform his past work; 19 if so, the claimant is not disabled and the claim must be denied. 20 § 416.920(a)(4)(iv). The claimant has the burden of proving that 21 he is unable to perform past relevant work. 22 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 23 disability is established. Id. If that happens or if the 24 claimant has no past relevant work, the Commissioner then bears 25 the burden of establishing that the claimant is not disabled 26 27 28 2 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 because he can perform other substantial gainful work available 2 in the national economy. § 416.920(a)(4)(v). That determination 3 comprises the fifth and final step in the sequential analysis. 4 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 5 B. 6 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 7 any substantial gainful activity since May 30, 2008, the 8 application date. (AR 22.) At step two, the ALJ concluded that 9 Plaintiff had the severe impairments of degenerative disc 10 disease of the lumbar spine, obesity, borderline intellectual 11 functioning, and dyslexia. (Id.) At step three, the ALJ 12 determined that Plaintiff s impairments did not meet or equal any 13 of the impairments in the Listing. (Id.) At step four, the ALJ 14 found that Plaintiff retained the RFC to perform light work 3 15 with certain additional limitations, including only those 16 activities involving no more than simple tasks with simple work17 related decisions. (AR 24.) At step five, the ALJ concluded 18 that jobs existed in significant numbers in the national economy 19 that Plaintiff could perform. (AR 27.) Accordingly, the ALJ 20 determined that Plaintiff was not disabled. (AR 28.) 21 22 23 24 25 26 27 28 3 Light work is defined as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 416.967(b). The regulations further specify that [e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles] and may involve occasional walking or standing. § 416.967(a)-(b). 5 1 V. RELEVANT FACTS 2 The record does not contain any treatment notes or other 3 medical evidence of any kind for Plaintiff other than that 4 generated as part of his SSI claim. On July 18, 2008, consulting 5 clinical psychologist Rosa Colonna examined Plaintiff and 6 administered a series of tests to him. (AR 149-53.) She 7 determined that he had a verbal IQ of 76, a performance IQ of 70, 8 and a full scale IQ of 72. (AR 151.) She concluded that his 9 [c]urrent intellectual functioning is borderline range but that 10 he could work. (AR 151-53.) 11 examined Plaintiff. On July 10, 2008, Dr. Seung Ha Lim (AR 155-58.) Based on Plaintiff s pain on 12 motion, back tenderness, and limited range of motion of the back, 13 he ordered an xray, which showed severe degenerative disease at 14 L4-5 and moderate degenerative disease at L5-S1 with partial 15 sacralization of L5. 16 (AR 159.) In finding that Plaintiff was not disabled, the ALJ 17 considered whether Plaintiff met or equaled various Listings. 18 (AR 22-24.) As to Listing 12.05C, the ALJ noted Plaintiff s IQ 19 scores and then found as follows, 20 [G]iven the margin of error in such testing . . . it is 21 as likely as not that all of his IQ scores are squarely 22 in the borderline range.4 23 evidence of Additionally, there is no significantly sub average general 24 25 26 27 28 4 Borderline intellectual functioning indicates that a person has below average cognitive ability, that is, an IQ of 71 to 85, but the deficit is not as severe as mental retardation, which is defined as having an IQ of 70 or below. Baines v. Astrue, No. EDCV 09-1121-MLG, 2011 WL 3759040, at *3 (C.D. Cal. Aug. 25, 2011) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). 6 1 intellectual 2 functioning initially manifested during the developmental 3 period; i.e., the evidence demonstrates or supports onset 4 of the impairment before age 22. 5 that he was in special education classes for math, 6 history and English; however, he also noted that he 7 graduated high school. Although the scales may be tipped 8 in the claimant s favor if the record demonstrated an 9 onset prior to age 22, due to this lack of evidence, the functioning with deficits in adaptive The claimant testified 10 undersigned 11 examiner, Rosa Colonna, Ph.D., who found the claimant s 12 overall cognitive ability to fall within the borderline 13 range. 14 borderline intellectual functioning does not meet the 15 criteria of 12.05C. adopts the opinion of the consultative Therefore the undersigned finds the claimant s 16 (AR 23.) 17 At various times, Plaintiff has claimed to be illiterate. 18 (AR 39, 107.) At the hearing before the ALJ, however, his 19 counsel did not go quite so far: she stated that Plaintiff s 20 ability to read is minimal and he is essentially illiterate. 21 (AR 35.) 22 In his decision, the ALJ rejected Plaintiff s claim not to 23 be able to read and found Plaintiff s credibility generally 24 limited. (AR 25.) In addition to noting the tension between 25 Plaintiff s claims to have been enrolled in special education 26 classes and to not be able to read and his having graduated from 27 high school (AR 23), the ALJ found as follows: 28 In regards to the claimant s borderline intellectual 7 1 functioning, there is no evidence that the claimant is 2 illiterate as he alleged at the hearing. 3 claimant took two diagnostic tests at the consultative 4 examination . . . and did not report any difficulties 5 with reading to Dr. Colonna. 6 noted in a prior disability report that he was capable of 7 reading 8 claimant filled out a handwritten function report which 9 more than suggests that claimant is capable of basic and understanding In fact, the Furthermore, the claimant English. Moreover, the 10 reading and writing skills. 11 lack 12 undersigned does not find the claimant to be illiterate 13 as he alleged. of evidence Therefore, due to the total supporting 14 (AR 26 (exhibit citations omitted).) this contention, the The ALJ also found that 15 the claimant s statements concerning the intensity, persistence 16 and limiting effects of [his] symptoms are not credible to the 17 extent they are inconsistent with the . . . residual functional 18 capacity assessment. 19 (AR 25.) As the ALJ noted, Plaintiff had on several of his 20 application forms indicated that he could read and understand 21 English. (See, e.g., AR 106.) In a handwritten function report, 22 the blank for name of person completing this form listed Alan 23 James Frear. (AR 132.) Plaintiff answered all of the questions 24 on the form in simple phrases that were responsive, presumably 25 after first reading the applicable question; he did write don t 26 understand below the section asking for any additional 27 information he might like to add. (AR 132.) And on some of the 28 forms on which he indicated that he could read and understand 8 1 English, he also indicated can t read or can t work because I 2 can t read, I need help with the applications, I can t read with 3 understanding. (AR 107, 181.) In his disability application, 4 Plaintiff stated that in his late-1970s jobs as a courier and 5 truck loader, he did perform duties like writing and 6 complet[ing] reports. (AR 108.) 7 VI. DISCUSSION 8 Plaintiff alleges that the ALJ erred in (1) concluding that 9 he did not meet or equal Listing 12.05C and (2) finding that 10 Plaintiff was not illiterate. 11 A. The ALJ Did Not Err in Determining that Plaintiff s 12 Condition Did Not Meet or Equal Listing 12.05C 13 1. 14 Applicable law At step three of the sequential disability-evaluation 15 process, the ALJ must evaluate the claimant s impairments to see 16 if they meet or medically equal any of the impairments listed in 17 the Listings. See 20 C.F.R § 416.920(d); Tackett v. Apfel, 180 18 F.3d 1094, 1098 (9th Cir. 1999). Conditions set forth in the 19 Listings are considered so severe that they are irrebuttably 20 presumed disabling, without any specific finding as to the 21 claimant s ability to perform his past relevant work or any other 22 jobs. Lester, 81 F.3d at 828. The Listings were designed to 23 operate as a presumption of disability that makes further inquiry 24 unnecessary. Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 25 885, 892, 107 L. Ed. 2d 967 (1990). If a claimant shows that his 26 impairments meet or equal a Listing, he is presumptively 27 disabled. §§ 416.925 416.926; see Turner v. Comm r of Soc. Sec., 28 613 F.3d 1217, 1221 22 (9th Cir. 2010). 9 1 The claimant has the initial burden of proving that an 2 impairment meets or equals a Listing. 3 530-33. See Zebley, 493 U.S. at To meet a listed impairment, a claimant must establish 4 that he or she meets each characteristic of a listed impairment 5 relevant to his or her claim. Tackett, 180 F.3d at 1099. To 6 equal a listed impairment, a claimant must establish symptoms, 7 signs and laboratory findings at least equal in severity and 8 duration to the characteristics of a relevant listed impairment, 9 or, if a claimant s impairment is not listed, then to the listed 10 impairment most like the claimant s impairment. 11 Id. An ALJ must evaluate the relevant evidence before 12 concluding that a claimant s impairments do not meet or equal a 13 listed impairment. 14 2001). Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. An ALJ s decision that a plaintiff has not met a Listing 15 must be upheld if it was supported by substantial evidence. See 16 Warre v. Comm r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 17 Cir. 2006). 18 Under Listing 12.05C, a plaintiff must be found disabled if 19 he shows the following: 20 12.05 Mental Retardation: Mental retardation refers to 21 significantly subaverage general intellectual functioning 22 with 23 manifested during the developmental period; i.e., the 24 evidence 25 impairments 26 severity for this disorder is met when the requirements 27 in A, B, C, or D are satisfied. 28 . . . . deficits in adaptive demonstrates before age or supports 22. 10 functioning The onset required initially of the level of 1 C. A valid verbal, performance, or full scale IQ of 60 2 through 70 and a physical or other mental impairment 3 imposing 4 limitation of function[.] an additional and significant work-related 5 20 C.F.R. Part 404, Subpt. P, App. 1 § 12.05. 6 7 2. Discussion The parties disagree on whether the ALJ properly rejected 8 Plaintiff s one IQ score that qualified under Listing 12.05C, his 9 performance IQ of 70 the highest possible number meeting the 10 Listing s requirements because of the margin of error and the 11 fact that other evidence in the record showed that Plaintiff was 12 squarely in the borderline range. Whether or not the ALJ erred 13 in this regard makes no difference because substantial evidence 14 supported his finding that no credible evidence showed that 15 Plaintiff s impairments began before he turned 22, as Listing 16 12.05C requires. Plaintiff claims that the fact that he was 17 allegedly enrolled in special education classes in high school 18 demonstrates that the impairment began before he turned 22.5 19 Plaintiff bears the burden of demonstrating his eligibility for a 20 listing, Zebley, 493 U.S. at 530-33, and the only evidence in the 21 record supporting his claim that he took special education 22 classes in high school was his own word. The ALJ found Plaintiff 23 5 The Court assumes for the sake of Plaintiff s argument 24 that enrollment in special education classes during high school 25 would demonstrate that the deficits in adaptive functioning 26 27 28 initially manifested during the developmental period. But see, e.g., Tillemans v. Astrue, No. 2:12-cv-00127-PMP-RJJ, 2012 WL 6949606, at *9 (D. Nev. Nov. 20, 2012) (IQ score of 69 at age 40 and one year of special education classes not sufficient to show mental impairment before age 22), accepted by 2013 WL 326323 (Jan. 28, 2013). 11 1 not fully credible, however, a finding Plaintiff does not 2 directly challenge, likely because ample evidence in the record 3 supported it. (See, e.g., AR 104, 111 (agency administrators 4 noting Plaintiff s inconsistent stories); AR 23-27 (ALJ detailing 5 inconsistencies between record and Plaintiff s claims).) Indeed, 6 one of Plaintiff s application forms specifically stated that he 7 had not been enrolled in special education classes in high 8 school. (AR 110.) Because substantial evidence existed in the 9 record supporting the ALJ s conclusion that Plaintiff had not met 10 his burden to show that the impairment began before the age of 11 22, the ALJ must be affirmed on this ground.6 12 B. 13 14 The ALJ Did Not Improperly Find that Plaintiff Was Not Illiterate Plaintiff claims that the ALJ erred in concluding that he 15 was not illiterate. He contends that because he is in fact 16 illiterate, Rule 202.09, which pertains to those closely 17 approaching advanced age, dictated that he was disabled. (J. 18 19 20 21 22 23 24 25 26 27 28 6 Some circuits, although not the Ninth, have held that an IQ score of 70 or below at any age creates a rebuttable presumption that the person had deficits in adaptive functioning before age 22. See, e.g., Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001). The Court is not persuaded by those cases for the reasons expressed in Rhein v. Astrue, No. 1:09-cv-01754JLT, 2010 WL 4877796, at *7 (E.D. Cal. Nov. 23, 2010), and for the additional reason that this presumption would seemingly apply in every case where Listing 12.05C was at issue, as a Plaintiff would not argue that he could meet or equal the Listing unless he had at least one IQ score after age 22 of 70 or below. In any event, even if such a rebuttable presumption applied in this Circuit, and even if it applied in light of the ALJ s finding that Plaintiff s one score of 70 was not representative of his intellectual functioning, Plaintiff s graduation from high school and his prior work experience would suffice to rebut the presumption. 12 1 Stip. at 11-13 (citing 20 C.F.R. Part 404, Subpt. P, App. 2, R. 2 202.09).) 3 4 1. Applicable law If no evidence contradicts it, an ALJ should use the 5 numerical grade level a claimant has achieved to determine his 6 educational abilities. 20 C.F.R. § 416.964(b). Illiterate 7 means the inability to read or write. 8 someone illiterate if the person cannot read or write a 9 simple message such as instructions or inventory lists We consider 10 even 11 Generally, an illiterate person has had little or no 12 formal schooling. though the 13 Id. § 416.964(b)(1). person can sign his or her name. Those with a high school education, on the 14 other hand, are generally considered to be able to do 15 semi-skilled through skilled work. 16 17 2. Id. § 416.964(b)(4). Discussion Substantial evidence in the record supported the ALJ s 18 conclusion that Plaintiff was not illiterate. As the ALJ noted, 19 Plaintiff filled out a form on which he apparently read the 20 questions asked and responded appropriately with multiword 21 phrases. The fact that he understood and could read the majority 22 of the questions is borne out by his writing don t understand 23 in response to one question. (AR 132.) Plaintiff claims that a 24 comparison of the handwriting on the form with other examples of 25 his writing in the record shows that the form was not really 26 filled out by him, or at the very least triggered a duty in the 27 ALJ to inquire further. (J. Stip. at 12.) But Plaintiff is 28 comparing his printed name to examples of his signature. 13 1 (Compare AR 132 with AR 55, 82, 145-46.) Moreover, the 2 handwriting repeatedly uses the first person, indicating that it 3 was actually completed by Plaintiff. (See, e.g., AR 125 ( I am 4 homeless ), AR 126 ( I have been this way for years, I sleep 5 about two hours a night ), AR 127 ( I live in the car, it s the 6 money I don t have ), AR 128 ( I don t live in a house ), AR 131 7 ( people scare me ).) There was no cause for the ALJ to believe 8 that someone other than Plaintiff had filled out the form. 9 Further, Plaintiff acknowledged on his application materials 10 that he could read and understand English. (AR 106.) By his own 11 admission he held jobs in the late 1970s and early 1980s, when he 12 was in his late 20s, that required him to perform duties like 13 writing and complet[ing] reports (AR 108), and nothing in the 14 record indicates, nor does Plaintiff claim, that something 15 happened to him after that time that caused him to become 16 illiterate; indeed, to the contrary, Plaintiff claims that 17 whatever cognitive impairments he does have have existed since 18 before age 22, which itself seemingly contradicts his claim that 19 he became unable to work because I can t read with 20 understanding only in August 1996 (AR 107). 21 Although since applying for disability benefits Plaintiff 22 has claimed that he can t read, the ALJ had a substantial basis 23 in the record to reject that claim. As noted, Plaintiff himself 24 has at times acknowledged that he can read and understand 25 English. One of the administrators who interviewed Plaintiff in 26 connection with his application noted that he changed his story 27 several times regarding his medical condition and alleged 28 disabilities. (AR 111.) No medical records or treatment notes 14 1 supported Plaintiff s claim that he had dyslexia. Even counsel 2 acknowledged that Plaintiff was not truly illiterate, in that he 3 had minimal ability to read. 7 (AR 35.) Under the Social 4 Security regulations, true illiteracy requires the inability to 5 read or write a simple message. 20 C.F.R. § 416.964(b)(1). 6 Plaintiff s handwritten completion of the disability form was 7 alone substantial evidence on which the ALJ could rely to find 8 that Plaintiff was not illiterate. Accordingly, the ALJ did not 9 err. 10 VII. CONCLUSION 11 Consistent with the foregoing, and pursuant to sentence four 12 of 42 U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered 13 AFFIRMING the decision of the Commissioner and dismissing this 14 action with prejudice. IT IS FURTHER ORDERED that the Clerk 15 serve copies of this Order and the Judgment on counsel for both 16 parties. 17 18 DATED: February 6, 2013 19 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 20 21 22 23 24 25 26 27 28 7 The ALJ took Plaintiff s limited reading skills into account by accepting the vocational expert s testimony that the jobs she found Plaintiff could perform required only very minimal language and reading skills. (AR 28, 44.) 8 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
