Kenneth Warren v. Michael J. Astrue, No. 5:2010cv00670 - Document 15 (C.D. Cal. 2011)
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. See memorandum for details. (hr)
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Kenneth Warren v. Michael J. Astrue Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KENNETH WARREN, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 10-670 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 20 21 22 23 24 25 26 27 I. SUMMARY On May 14, 2010, plaintiff Kenneth Warren (“plaintiff”) filed a Complaint seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; May 19, 2010 Case Management Order ¶ 5. 28 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On December 5, 2007, plaintiff filed an application for Supplemental 7 Security Income benefits. (Administrative Record (“AR”) 125-27). Plaintiff 8 asserted that he became disabled on August 31, 2006, due to paranoia, 9 schizophrenia, blurred vision, arthritis, high blood pressure and trouble with his 10 big toes. (AR 125, 135). 11 On November 24, 2009, the Administrative Law Judge (“ALJ”) determined 12 that plaintiff was not disabled through the date of the decision. (AR 9-20). 13 Specifically, the ALJ found: (1) plaintiff suffers from the following severe 14 impairments: psychotic disorder, not otherwise specified; anxiety disorder, not 15 otherwise specified; and borderline intellectual functioning (AR 11); (2) plaintiff 16 does not have an impairment or combination of impairments that meet or 17 medically equal one of the listed impairments (AR 12); (3) plaintiff retains the 18 residual functional capacity to perform a full range of work at all exertional levels 19 with certain nonexertional limitations1 (AR 14); (4) plaintiff cannot perform his 20 past relevant work (AR 18); and (5) there are jobs that exist in significant numbers 21 in the national economy that plaintiff could perform, such as dishwasher, cleaner 22 and landscape worker (AR 19). 23 The Appeals Council denied plaintiff’s application for review. (AR 1-3). 24 /// 25 /// 26 27 28 1 The ALJ determined that plaintiff is limited to simple repetitive tasks, is precluded from contact with the public, is limited to only occasional non-intense contact with the public, is limited to only occasional non-intense contact with co-workers and supervisors and is precluded from work that includes responsibility for the safety of others. (AR 14). 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 4 engage in any substantial gainful activity by reason of a medically determinable 5 physical or mental impairment which can be expected to result in death or which 6 has lasted or can be expected to last for a continuous period of at least twelve 7 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 8 § 423(d)(1)(A)). The impairment must render the claimant incapable of 9 performing the work he previously performed and incapable of performing any 10 other substantial gainful employment that exists in the national economy. Tackett 11 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 12 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 13 sequential evaluation process: 14 (1) 15 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 16 (2) Is the claimant’s alleged impairment sufficiently severe to limit 17 his ability to work? If not, the claimant is not disabled. If so, 18 proceed to step three. 19 (3) Does the claimant’s impairment, or combination of 20 impairments, meet or equal an impairment listed in 20 C.F.R. 21 Part 404, Subpart P, Appendix 1? If so, the claimant is 22 disabled. If not, proceed to step four. 23 (4) Does the claimant possess the residual functional capacity to 24 perform his past relevant work?2 If so, the claimant is not 25 disabled. If not, proceed to step five. 26 /// 27 28 2 Residual functional capacity is “what [one] can still do despite [ones] limitations” and represents an “assessment based upon all of the relevant evidence.” 20 C.F.R. § 416.945(a). 3 1 (5) Does the claimant’s residual functional capacity, when 2 considered with the claimant’s age, education, and work 3 experience, allow him to adjust to other work that exists in 4 significant numbers in the national economy? If so, the 5 claimant is not disabled. If not, the claimant is disabled. 6 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 7 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden 8 of proof at steps one through four, and the Commissioner has the burden of proof 9 at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) 10 (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of 11 proving disability). 12 B. 13 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 14 benefits only if it is not supported by substantial evidence or if it is based on legal 15 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 16 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 17 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 18 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 19 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 20 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 21 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 22 To determine whether substantial evidence supports a finding, a court must 23 “‘consider the record as a whole, weighing both evidence that supports and 24 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 26 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 27 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 28 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 1 IV. DISCUSSION 2 Plaintiff asserts, among other things, that the ALJ erred in concluding that 3 his mental impairments did not meet or equal the listings for mental retardation at 4 20 C.F.R., Part 404, Subpart P, App. 1, § 12.05C to establish presumptive 5 disability. More specifically, plaintiff challenges the ALJ’s conclusion that all of 6 plaintiff’s significant work related limitations of function would result from 7 borderline intellectual functioning alone and that there were no additional 8 limitations caused by his other mental impairments. (Plaintiff’s Motion at 3). 9 A claimant meets Listing 12.05C if he has “[a] valid verbal, performance, or 10 full scale IQ of 60 through 70 and a physical or other mental impairment imposing 11 an additional and significant work-related limitation of function . . . ” 20 C.F.R., 12 Part 404, Subpart P, App. 1, § 12.05C. 13 Here, the ALJ recognized that plaintiff had received a verbal IQ score of 66 14 and a full scale IQ score of 70 when tested by the psychological consultative 15 examiner. (AR 14) (citing Ex. 8F, p. 4 [AR 207]). Though not entirely clear from 16 the decision, it does not appear that the ALJ questioned the validity of such IQ 17 tests. (AR 14). The ALJ concluded, however, that all of plaintiff’s significant 18 work related limitations of function would result from borderline intellectual 19 functioning alone and that there were no additional limitations caused by his other 20 mental impairments. (AR 14). Based upon such conclusions, the ALJ found that 21 plaintiff did not meet Listing 12.05C. 22 This Court concludes that a remand is appropriate for the ALJ to resolve an 23 apparent inconsistency in his decision. As noted above, the ALJ concluded that 24 plaintiff does not have a physical or other mental impairment imposing an 25 additional significant work-related limitation of function, as required by the 26 second prong of § 12.05C. The regulations provide that in determining whether a 27 claimant’s impairments satisfy the second prong of § 12.05C “[the Commissioner] 28 will assess the degree of functional limitation the additional impairment(s) 5 1 imposes to determine if it significantly limits the claimant’s physical or mental 2 ability to do basic work activities, i.e., is a ‘severe’ impairment(s), as defined in 3 [20 C.F.R.] §§ 404.1520(c) and 416.920(c).” 20 C.F.R., Pt. 404, Subpt. P, App. 1, 4 § 12.00(A).3 The Ninth Circuit has held that “[a]n impairment . . . may be found 5 ‘not severe only if the evidence establishes a slight abnormality that has no more 6 than a minimal effect on an individual's ability to work.’” Webb v. Barnhart, 433 7 F.3d 683, 686 (9th Cir.2005) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th 8 Cir.1966)); see also Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir.1987) (“An 9 impairment imposes a significant work-related limitation of function” according to 10 the second prong of § 12.05C “when its effect on a claimant’s ability to perform 11 basic work activities is more than slight or minimal.”). Here, the ALJ determined 12 that in addition to borderline intellectual functioning, plaintiff suffered from two 13 additional severe mental impairments: a psychotic disorder, not otherwise 14 specified and an anxiety disorder, not otherwise specified. (AR 11) (citing 15 20 C.F.R. § 416.920(c)). As such, based on the ALJ’s own findings at step two of 16 the sequential evaluation process, it appears that plaintiff’s other mental 17 impairments satisfy the second prong of § 12.05C of the Listing because he has 18 severe mental impairments that are distinct from his qualifying IQ score. See 19 Gomez v. Astrue, 695 F. Supp. 2d 1049, 1061-62 (C.D. Cal. 2010); see also Rhein 20 v. Astrue, 2010 WL 4877796, *10 (E.D. Cal. Nov. 23, 2010) (step two finding of 21 other severe impairment necessarily determines that the second prong of Listing 22 12.05C is satisfied). To the extent the ALJ found that plaintiff’s other mental 23 impairments do not satisfy the second prong of § 12.05C, remand is warranted to 24 address this apparent inconsistency in the ALJ’s decision. See Rhein, 2010 WL 25 4877796, at **10-11; Schuler v. Astrue, 2010 WL 1443892, *5 (C.D. Cal. Apr. 26 2010). 27 3 28 20 C.F.R. §§ 404.1520(c) and 416.920(c) define a “severe impairment” as “any impairment or combination of impairments which significantly limits [a claimant's] physical or mental ability to do basic work activities.” See 20 C.F.R. §§ 404.1520(c), 416.920(c). 6 1 V. CONCLUSION 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: February 14, 2011 7 ____________/s/_____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4 28 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. 7
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