Michele S Morgan-Gomez v. Carolyn W Colvin, No. 5:2013cv00053 - Document 25 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Alka Sagar. The Court REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner for further administrative action consistent with this Order. (afe)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 ) No. ED CV13-53-AS ) ) MEMORANDUM DECISION AND ORDER Plaintiff, ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the Social Security Administration, ) ) ) Defendant. ) ) MICHELE S. MORGAN-GOMEZ, 18 I. 19 INTRODUCTION 20 On 21 January 18, 2013, Plaintiff Michele S. Morgan-Gomez 22 ( Plaintiff ) filed a Complaint, pursuant to 42 U.S.C. §§ 405(g) and 23 1383(c) (Docket Entry No. 3). 24 decision of the Commissioner of the Social Security Administration 25 ( Commissioner or Defendant ) denying Plaintiff s applications for 26 a 27 supplemental security income. 28 the Court to award benefits or, in the alternative, remand the matter period of disability, The Complaint seeks to reverse the disability insurance (Compl. 1 2.) 1 benefits, and The Complaint requests 1 for a new hearing. 2 filed 3 Certified Administrative Record ( AR ) (Docket Entry No. 14). 4 August 23 and August 27, 2013, respectively, the parties consented to 5 the jurisdiction of the undersigned United States Magistrate Judge, 6 pursuant to 7 October 17, 8 Disposition ( Joint Stip. ) (Docket Entry No. 23). 9 stated below, the decision of the Commissioner denying benefits is 10 REVERSED and this matter is REMANDED to the Commissioner for further 11 administrative action consistent with this Order. an Answer 28 (See id. at 2 3.) to the U.S.C. 2013, Complaint § 636(c) the On August 1, 2013, Defendant (Docket (Docket parties filed Entry Entry a No. Nos. Joint 17, 13) and a On 18). On Stipulation for For the reasons 12 13 II. 14 PROCEDURAL HISTORY 15 16 On July 9, 2009, Plaintiff filed applications for a period of 17 disability, disability insurance benefits, and supplemental security 18 income, alleging a period of disability beginning on November 6, 19 2006. 20 issued 21 69 73.) 22 applications upon reconsideration. 23 Plaintiff requested a de novo hearing before an Administrative Law 24 Judge ( ALJ ). (AR 138 41, 142 49.) an initial On March denial 11, On September 26, 2009, the Commissioner of 2010, Plaintiff s the applications. Commissioner denied (Id. at 76 81.) (Id. at Plaintiff s On May 6, 2010, (Id. at 82 84.) 25 26 On June 2, 2011, ALJ Joseph D. Schloss conducted a hearing in 27 this matter in San Bernardino, California. 28 hearing, Plaintiff, represented by counsel, appeared and testified. 2 (Id. at 37 64.) At the 1 (Id. at 37, 43 58.) Moreover, William Debolt, a board-certified 2 neurologist who did not examine Plaintiff, and Sandra Fioretti, a 3 vocational expert, both testified at the hearing as well. 4 30, 37, 39 44, 47, 58 61.) 5 decision unfavorable to Plaintiff. (Id. at On August 10, 2011, the ALJ issued a (Id. at 21 32.) 6 On October 6, 2011, Plaintiff requested that the Appeals Council 7 8 review the ALJ s decision. (Id. at 17 19.) 9 Appeals Council denied Plaintiff s request for review, rendering the (Id. at 1 3.) On October 26, 2012, the 10 ALJ s decision final. 11 filed her Complaint in this Court, seeking to reverse the ALJ s 12 decision. 13 initiation of this civil action was timely and that the Court has 14 jurisdiction 15 (Joint Stip. 3.) (Compl. 1 3.) to review On January 18, 2013, Plaintiff The parties stipulate that Plaintiff s the final decision of the Commissioner. 16 17 III. 18 FACTUAL BACKGROUND 19 20 A. 21 Plaintiff s Allegations During The Administrative Proceedings 22 When Plaintiff applied for benefits, she asserted that she was 23 24 disabled because 25 loss, 26 testified about each of these purported conditions, and also asserted 27 that she had anxiety. 28 54, asthma, 55 she [and] (memory had [e]pilepsy, migraines. loss); (AR grand-mal 69.) At seizures, the memory hearing, she (See id. at 40 (seizures); id. at 45, 50 51, id. at 55 56 3 (migraines); id. at 57 58 1 (anxiety).) With regard to Plaintiff s alleged memory loss, she 2 claimed that she had difficulty remembering several things, including 3 the obligation to take her seizure medication and the dates on which 4 she had certain seizures. 5 Plaintiff did not argue before the ALJ that she was disabled because 6 she met the Commissioner s listing for mental retardation, (see id. 7 at 37 64 (transcript of administrative hearing)), Plaintiff raised 8 the issue before the Appeals Council. 9 Parts IV, VII.A (discussing the effect of meeting the listing for (See id. at 45, 50 51, 54, 55.) Although (See id. at 223 24; see infra 10 mental retardation).) 11 this 12 because her impairments met the Commissioner s listing for mental 13 retardation. civil action, In the Joint Stip. filed by the parties in Plaintiff again asserts that she is disabled (See Joint Stip. 6 9, 18.) 14 15 B. Dr. Taylor s Report 16 17 On an unspecified date, Dr. Clifford Taylor, a licensed clinical 18 psychologist, examined Plaintiff at the request of the California 19 Department of Social Services. 20 2009, Dr. Taylor issued a report summarizing that evaluation. 21 at 273 78.) According to the report, Dr. Taylor subjected Plaintiff 22 to tests including, 23 Intelligence Scale, Fourth 24 Memory Scale, Third Edition ( WMS-III ). several (See AR 273, 278.) inter Edition alia, the ( WAIS-IV ), On August 28, Wechsler and the (Id. Adult Wechsler (See id. at 276 77.) 25 26 The WAIS-IV has a full scale IQ score, which is comprised of 27 four composite scores: verbal comprehension, perceptual reasoning, 28 working memory, and processing speed. 4 (See id. at 276; Press 1 Release, Pearson 2 Fourth 3 http://www.pearsonclinical.com/psychology/news/2008/wechsler-adult- 4 intelligence-scale-fourth-edition-now-available-from-pearson.html.) 5 Here, Dr. Taylor concluded that Plaintiff had a verbal comprehension 6 score of 72 (borderline classification), a perceptual reasoning score 7 of 86 (low average classification), a working memory score of 63 8 (borderline classification), a 9 (borderline classification), and Edition Educ., Now Inc., Wechsler Available from Adult Intelligence Pearson processing a speed scale IQ 28, 2008), score of of score 71 70 10 (borderline classification). 11 III 12 plac[ed] her in the extremely low range. 13 Taylor also opined that [Plaintiff s] delayed auditory memory was 14 assessed to be in the low range as evidenced by an Auditory Delayed 15 Subtest Composite score . . . [from] the [WMS-III]. 16 concentration was poor as she could repeat only 3 digits backward. 17 Her long-term memory was intact for events and situations. 18 276.) on Plaintiff, Dr. (AR 276.) full (Aug. Scale, Taylor After administering the WMS- concluded that Plaintiff s (Id. at 276 77.) score Dr. Her sustained (Id. at 19 20 C. Dr. Amado s Report 21 22 On September 9, 2009, Dr. H. Amado, a physician who did not 23 examine Plaintiff, rendered an opinion after evaluating Dr. Taylor s 24 report 25 impairments. 26 [i]nsufficient evidence to substantiate the presence [of impairments 27 meeting or equaling the listing for mental retardation]. 28 285.) and other evidence (See AR 282 92.) concerning Plaintiff s purported Dr. Amado concluded that there was (See AR Dr. Amado reasoned that Plaintiff had no [history of] mental 5 1 health care, 2 school, and no [Drug Addiction and/or Alcoholism][1] involvement. 3 (Id. 4 suppression 5 memory/processing speed scores] that were commensurate with [her WMS- 6 III] scores. 7 provides a key for these abbreviations).) 8 [Plaintiff s] [m]ental allegations are credible but not quite at 9 listing levels. at . 292.) . . Dr. of [the no history Amado also full scale of special opined IQ education that score] there by very services was low a in likely [working (Id. at 292; see also id. at 276 (Dr. Taylor s opinion Dr. Amado concluded that (Id. at 292.) 10 11 D. Dr. Debolt s Testimony 12 13 Dr. Debolt reviewed Plaintiff s medical records and testified at 14 the administrative hearing. (See AR 30, 37.) 15 testimony, he briefly addressed Dr. Taylor s report: [Plaintiff] 16 alleges that there is some memory problems [sic], but [Dr. Taylor s] 17 psychological testing . . . did not confirm that. 18 opinion, she does not meet the listing for neurological conditions 19 nor psychiatric conditions. 20 Debolt s testimony addressed Plaintiff s alleged seizures, asthma, 21 and migraines. (Id. at 41.) During Dr. Debolt s So that in my The remainder of Dr. (See id. at 39 44, 47.) 22 23 24 25 26 27 28 1 To decipher the abbreviation DAA, the Court referred to a list of acronyms provided by the Social Security Administration. GN 0440.001 List of Acronyms, Soc. Sec. Admin. (July 2, 2012), https://secure.ssa.gov/apps10/poms.nsf/lnx/0204440001. 6 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must show that a 5 medically determinable physical or mental impairment prevents [him 6 or] her from engaging in substantial gainful activity[,][2] and that 7 the impairment is expected to result in death or to last for a 8 continuous period of at least twelve months. 9 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 The 10 impairment must render[] the claimant incapable of performing the 11 work [he or she] previously performed and . . . of performing any 12 other 13 economy. 14 (citing 42 U.S.C. § 423(d)(2)(A)). substantial gainful employment that exists in the national Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts 17 a five-step sequential inquiry. 18 20 C.F.R. §§ 404.1520, 416.20. The steps are: 19 20 21 22 23 24 25 26 27 28 1. Is [the] claimant presently working in a substantially gainful activity? If so, then the claimant is not disabled within the meaning of the Social Security Act. If not, proceed to step two. 2. Is the claimant s impairment severe? If so, proceed to step three. If not, then the claimant is not disabled. 3. Does the impairment meet or equal one of a list of specific impairments described in 20 C.F.R. Part [404, Subpart P,] Appendix 1 [( Appendix 1 )]? If so, then the claimant is disabled. If not, proceed to step four. 2 Substantial gainful activity is defined as work that . . . [i]nvolves doing significant and productive physical or mental duties[] and . . . [i]s done (or intended) for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 7 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled. If not, proceed to step five. 5. Is the claimant able to do any other work? If so, then the claimant is not disabled. If not, then the claimant is disabled. 1 2 3 4 5 6 Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001) (citations 7 omitted) (citing 20 C.F.R. §§ 404.1520(b) (f), 416.920(b) (f)). 8 The claimant has the burden of proof at steps one through four, 9 10 and the Commissioner has the burden of proof at step five. Id. at 11 953 54 (citing Tackett, 180 F.3d at 1098). 12 has an affirmative duty to assist the claimant in developing the 13 record at every step of the inquiry. 14 180 F.3d at 1098 n.3). 15 develop the record fully and fairly and to ensure that the claimant s 16 interests are considered, even when the claimant is represented by 17 counsel. 18 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)); 19 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). Additionally, the ALJ Id. at 954 (citing Tackett, This special duty requires the ALJ to Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) 20 If a claimant has an impairment (or impairments) that meets any 21 22 of the listings 23 requirement, 24 individual s 25 §§ 404.1520(d), 416.920(d); see also Celaya v. Halter, 332 F.3d 1177, 26 1181 (9th Cir. 2003) ( If a claimant does meet the listing criterion 27 for one or more impairments, [he or] she is judged to be disabled 28 without the need to conduct any further analysis. ). that age, in Appendix claimant education, 1 is or and satisfies disabled, work 8 the durational regardless experience. See of 20 that C.F.R. To meet a 1 listing, the claimant must establish that his or her condition(s) 2 satisfies each element of the listed impairment. 3 F.3d at 1099. See Tackett, 180 4 5 Moreover, if a claimant has an impairment that is medically 6 equivalent to one or more listed impairments, or if the combined 7 effect 8 impairment, then a claimant is conclusively presumed to be disabled. 9 See of 20 all impairments C.F.R. is medically §§ 404.1520(d), equivalent to 404.1526(b)(2) (3), a listed 416.920(d), 10 416.926(b)(2) (3); see also Lewis v. Apfel, 236 F.3d 503, 514 (9th 11 Cir. 2001) (alteration in original) (citation omitted) (citing 20 12 C.F.R. § 404.1520(d)) ( If a claimant s impairment does not meet the 13 criteria specified in the listings, he or she is still disabled if 14 the impairment equals a listed impairment. 15 than one impairment, the Commissioner must determine whether the 16 combination of [the] impairments is medically equal to any listed 17 impairment. ). 18 equivalent equal in 19 severity and duration to the criteria of any listed impairment. 20 20 C.F.R. §§ 404.1526(a), 416.926(a). to An a impairment listed (or impairment if If a claimant has more impairments) it is at is medically least 21 22 V. 23 THE ALJ S DECISION 24 25 The ALJ employed the five-step sequential evaluation procedure 26 discussed above. (See 27 concluded that 28 activity since November 6, 2006. Plaintiff AR 24 31.) has not At the engaged in (Id. at 26.) 9 first step, substantial the ALJ gainful At the second step, 1 the ALJ found that Plaintiff suffered from 2 impairments: a seizure disorder and asthma. 3 the following three, the ALJ concluded the following: (Id. at 26.) severe At step 4 5 6 7 8 9 10 11 12 13 The evidence does not support a finding that the claimant has the severity of symptoms required either singly or in combination to meet or equal any medical listing, including those found under 11.00 [(neurological impairments)] and 3.00 [(respiratory impairments)]. No treating or examining physician has recorded findings equivalent in severity to the criteria of any listed impairment, nor does the evidence show medical findings that are the same or equivalent to those of any listed impairment. A more detailed discussion [is provided in the analysis of Plaintiff s residual functional capacity]. (Id. at 27.) 14 15 Before proceeding to step four, the ALJ concluded that: 16 17 18 19 20 21 22 [Plaintiff] has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant cannot work at unprotected heights; she is precluded from climbing ladders, ropes or scaffolds; she is precluded from driving; she is precluded from working around unprotected bodies of water; she should not be responsible for the safety of others; she should not work in an environment with fumes, dust, odors or poor ventilation or gases. 23 24 (Id.) In the ALJ s analysis of Plaintiff s 25 capacity, the ALJ considered Plaintiff s purported seizures, asthma, 26 migraines, anxiety, and memory loss, and the alleged severity of 27 those conditions. 28 memory loss, the ALJ rejected the memory impairments found by Dr. (See id. at 27 31.) 10 residual functional With regard to Plaintiff s 1 Taylor because they were not supported by the claimant s admitted 2 activities [(e.g., self care without assistance, ability to complete 3 household chores)] or mental health treatment history. 4 28, 30.) 5 completed high school and was not in special education. 6 30 31.) (See id. at The ALJ also noted that [Plaintiff] testified that she (Id. at 7 8 At step four, the ALJ concluded that, given Plaintiff s residual 9 functional capacity, [she] is capable of performing past relevant 10 work as a fast food worker, and a stock sales attendant. 11 31.) 12 step five of the analysis. 13 Plaintiff was not disabled. (Id. at Because of the ALJ s findings at step four, he did not reach (See id.) Rather, he concluded that (Id.) 14 15 VI. 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. § 405(g), a District Court may review the 19 Commissioner s decision to deny benefits. The Court may set aside 20 the Commissioner s decision when the ALJ s findings are based on 21 legal error or are not supported by substantial evidence in the 22 record as a whole. 23 Cir. 2001). 24 than a preponderance. 25 Cir. 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 26 1997)). 27 accept as adequate to support a conclusion. 28 112 F.3d at 1066; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Substantial evidence is more than a scintilla, but less Reddick v. Chater, 157 F.3d 715, 720 (9th It is relevant evidence which a reasonable person might 11 Id. (citing Jamerson, 1 1996)). 2 finding, a court must consider the record as a whole, weighing both 3 evidence 4 [Commissioner s] conclusion. 5 Penny 6 evidence can reasonably support either affirming or reversing the 7 [Commissioner s] 8 judgment for that of the [Commissioner]. 9 720 21 (citing Flaten v. Sec y of Health & Human Servs., 44 F.3d 10 To determine v. that supports Sullivan, 2 whether and F.3d substantial evidence supports detracts from a the Aukland, 257 F.3d at 1035 (quoting 953, conclusion, that evidence 956 [a] (9th court Cir. may 1993)). not If substitute the its Reddick, 157 F.3d at 1453, 1457 (9th Cir. 1995)). 11 12 VII. 13 DISCUSSION 14 15 The parties have stipulated that the sole issue on review is 16 [w]hether the ALJ properly considered whether [Plaintiff s] mental 17 limitations met or equaled . . . Listing § 12.05[] [(the listing for 18 mental retardation)]. (Joint Stip. 4.) 19 20 A. Listing § 12.05 The listings 21 22 is provide criteria 23 individual conclusively 24 retardation. 25 [hereinafter 26 Listing § 12.05 explains that: for disabled by determining virtue of whether an [m]ental See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05 Listing § 12.05]. The 27 28 12 introductory paragraph of [m]ental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22. 1 2 3 4 5 6 7 8 9 10 11 12 13 Id. The next paragraph of Listing § 12.05 states that the required level of severity for this disorder is met when the requirements in [paragraphs] A, B, C, or D are satisfied. Id. Paragraph C (or Listing § 12.05C ) provides the following requirements: [a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function[.] 14 15 Listing § 12.05C. 16 17 To meet Listing § 12.05 by relying on paragraph C, a claimant 18 must satisfy the criteria of that paragraph and the criteria set out 19 in the introductory paragraph. 20 (8th Cir. 2006). 21 the claimant presents evidence of an IQ score of 60 through 70 (i.e., 22 the first prong of Listing § 12.05C), then the claimant presumptively 23 meets the introductory paragraph s criteria. 3 See, e.g., Hodges v. 24 Barnhart, 276 F.3d 1265, 1268 69 (11th Cir. 2001) (citing Muncy v. 25 Apfel, 247 F.3d 728, 734 (8th Cir. 2004)); Luckey v. U.S. Dep t of 26 Health and Human Servs., 890 F.2d 666, 668 69 (4th Cir. 1989). 27 circuits have declined to adopt this presumption. 28 Maresh v. Barnhart, 438 F.3d 897, 899 Nevertheless, several circuits have held that if 3 Other See, e.g., Markle As a shorthand, the Court refers to this approach as the IQ presumption. 13 1 v. Barnhart, 324 F.3d 182, 188 89 (3d Cir. 2003); Foster v. Halter, 2 279 F.3d 348, 354 55 (6th Cir. 2001). 3 decided whether to adopt the IQ presumption. 4 v. Astrue, No. 09-00009, 2009 WL 2406358, at *8 (S.D. Cal. Aug. 5, 5 2009). 6 split on this issue. 7 1443892, at *6 (C.D. Cal. Apr. 7, 2010) ( [A] valid qualifying IQ 8 score 9 rebuttable presumption that the claimant s mental retardation began 10 prior to the age of 22, as it is presumed that IQ scores remain 11 relatively 12 Astrue, No. 11-10714, 2013 WL 146190, at *4 (C.D. Cal. Jan. 11, 2013) 13 ( This Court finds [Schuler s] reasoning persuasive. ), with Rhein v. 14 Astrue, No. 09-01754, 2010 WL 4877796, at *7 8 (E.D. Cal. Nov. 23, 15 2010) ( [T]he Court declines to accept Plaintiff s argument [that] 16 she is entitled to a per se presumption that her impairment existed 17 prior to age 22 based solely on valid, qualifying, post-developmental 18 IQ scores. ), and Clark v. Astrue, No. 10-2863, 2012 WL 423635, at *5 19 (E.D. Cal. Feb. 8, 2012) (relying upon Rhein s holding). The Ninth Circuit has not yet See Applestein-Chakiris Moreover, District Courts in the Ninth Circuit appear to be obtained by Compare Schuler v. Astrue, No. 09-2126, 2010 WL the constant claimant during a after person s the age of lifetime. ), 22 and creates Flores a v. 20 21 To meet the physical or other mental impairment prong of 22 Listing § 12.05C, a claimant must show that he or she has a severe 23 impairment, as defined in step two of the Commissioner s five-step 24 sequential evaluation process. 25 1, § 12.00A [hereinafter Listing § 12.00A] ( For [Listing § 12.05C], 26 we will assess the degree of functional limitation the additional 27 impairment(s) imposes to determine if it significantly limits your 28 physical or mental ability to do work activities, i.e., is a severe See 20 C.F.R. pt. 404, subpt. P, app. 14 1 impairment(s), as defined in §§ 2 404.1520(c) and 416.920(c). ); Schuler, 2010 WL 1443892, at *5. 3 4 Therefore, assuming the IQ presumption applies, a claimant may 5 demonstrate that he or she meets the listing for mental retardation 6 by showing that he or she has a valid IQ score of 60 to 70 and 7 possesses a physical or other mental impairment that satisfied step 8 two of the five-step sequential evaluation process. 9 2010 WL 1443892, at *5 6. See Schuler, The presumption can be rebutted by showing 10 that the IQ score is invalid. 11 837 38 (11th Cir. 1992) (citing Popper v. Heckler, 779 F.2d 1497, 12 1499 (11th Cir. 1986)), cited with approval in Hodges, 276 F.3d at 13 1269; Schuler, 2010 WL 1443892, at *6 (citing Lowery, 979 F.2d at 14 837). 15 the claimant s daily activities and behavior. 4 16 837. 17 notwithstanding the IQ score, the claimant did not have deficits in 18 adaptive 19 twenty-two. 20 21 22 23 24 25 26 27 28 See Lowery v. Sullivan, 979 F.2d 835, To reject the validity of an IQ score, the ALJ may rely on The IQ presumption functioning that may also initially be Lowery, 979 F.2d at rebutted manifested by showing before that, the age of See id. at 838 39. 4 While it is clear that an ALJ can reject the validity of an IQ score, the Ninth Circuit has not yet adopted an approach for conducting this analysis. See Thresher v. Astrue, 283 F.3d App x 473, 475 & n.6 (9th Cir. 2008). The circuits appear to have advanced different methods for evaluating a claimant s activities. See id. The Sixth Circuit appears to hold that, if an ALJ rejects a claimant s IQ scores because they are inconsistent with that individual s activities, the ALJ s conclusion must be supported by psychiatric authority or empirical evidence. See Brown v. Sec y of Health & Human Servs., 948 F.2d 268, 269 71 (6th Cir. 1991) (quoting Diagnostic and Statistical Manual of Mental Disorders § 317.00 (3d ed. 1987)). On the other hand, the Eleventh Circuit has rejected scores without requiring such support. See Popp v. Heckler, 779 F.2d 1497, 1498 1500 (11th Cir. 1986). 15 1 B. The Court Adopts The IQ Presumption 2 3 Plaintiff argues that she meets Listing § 12.05 because (1) she 4 satisfies the IQ presumption and (2) the record shows that she met 5 Listing § 12.05C s physical or other mental impairment prong. 6 Joint Stip. 4, 7 (citing Schuler v. Astrue, No. 09-2126, 2010 WL 7 1443892, at *6 (C.D. Cal. Apr. 7, 2010)). 8 contentions, the Court must first determine whether it should adopt 9 the IQ presumption. (See To evaluate Plaintiff s 10 11 The Eleventh Circuit in Hodges v. Barnhart articulated the 12 rationale for the IQ presumption. 276 F.3d 1265, 1268 69 (11th Cir. 13 2001). 14 generally remain 15 [present] valid 16 additional 17 Listing § 12.05. 5 18 (8th Cir. 2001); Luckey v. U.S. Dep t of Health and Human Servs., 890 19 F.2d 666, 668 (4th Cir. 1989)); see also Guzman v. Bowen, 801 F.2d 20 273, 275 (7th Cir. 1986) (concluding that an IQ score taken after the 21 insured period presumptively reflects the person s IQ during th[at] 22 insured period ). 23 made official statements suggesting that intelligence testing during Hodges reasoned that, because courts have held that IQ scores fairly I.Q. mental or constant score of physical throughout 60 to 70 impairment a and person s evidence presumptively life, of a [an] satisfy See id. (citing Muncy v. Apfel, 247 F.3d 728, 734 The court further noted that the Commissioner has 24 25 26 27 28 5 The Fourth Circuit in Luckey v. U.S. Dep t of Health and Human Servs. also adopted this factual premise. 890 F.2d 666, 668 (4th Cir. 1989). Nonetheless, the court focuses its discussion on Hodges because the Eleventh Circuit provided more detail when discussing the IQ presumption s rationale. 16 1 the developmental years would not be 2 required to meet the introductory paragraph of Listing § 12.05: 3 4 5 6 7 8 9 The proposed listing . . . stated that the significantly subaverage general intellectual functioning with deficits in adaptive behavior must have been initially manifested during the developmental period. We have always interpreted this word to include the common clinical practice of inferring a diagnosis of mental retardation when the longitudinal history and evidence of current functioning demonstrate that the impairment existed before the end of the developmental period. 10 11 Id. (emphasis in original) (quoting Revised Medical Criteria for 12 Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 13 50746, 50772 (Aug. 21, 2000) [hereinafter Revised Medical Criteria]). 14 15 Moreover, the Commissioner made another statement that supports 16 the validity of the IQ presumption. When discussing the changes made 17 to Listing § 12.05 in August 2000, the Commissioner stated: 18 19 20 21 22 23 [W]e expanded the phrase setting out the age limit for [Listing § 12.05 s] developmental period. The final rules clarify that we do not necessarily require evidence from the developmental period to establish that the impairment began before the end of the developmental period. The final rules permit us to use judgment, based on current evidence, to infer when the impairment began. 24 25 Revised Medical Criteria at 50753 (emphasis added). 26 Commissioner s public statements collectively provide a strong basis 27 for the adoption of the IQ presumption. 28 17 Hodges and the Decisions from the Third and Sixth Circuits do not rebut this 1 2 reasoning. In Markle v. Barnhart, the Third Circuit declined to 3 adopt the IQ presumption. 4 However, the panel did not reject Hodges s reasoning to arrive at 5 this conclusion. 6 Circuit 7 precedent inconsistent with the IQ presumption. 8 The court went on to point out that a different result might be 9 suggested by the subsequently enacted August 21, 2000 Revised Medical 10 Criteria [(i.e., the Commissioner s statements that were quoted in 11 Hodges)]. 12 binding precedent at issue was decided before the Revised Medical 13 Criteria were issued. 324 F.3d 182, 188 89 (3d Cir. 2003). Rather, the court explicitly stated that a Third procedural rule prohibited See id. at 188 89. the panel from overruling Id. at 188 89 & n.2. Moreover, the panel noted that the See id. at 188. 14 Furthermore, the Sixth Circuit s decision in Foster v. Halter 15 16 does little to weaken Hodges s rationale. 279 F.3d 348 (6th Cir. 17 2001). 18 after the age of twenty-two, that were within the range provided by 19 Listing § 12.05C. 20 these 21 introductory paragraph of Listing § 12.05. 22 doing, the court did not address Hodges s reasoning in any way. 23 id. There, the plaintiff produced several IQ scores, recorded IQ scores See id. at 352. were Nonetheless, the Court found that insufficient to presumptively meet See id. at 354 55. the In so See 24 25 Moreover, decisions within this circuit that reject the IQ 26 presumption are not persuasive. For instance, the Eastern District 27 of California in Rhein v. Astrue reasoned that the presumption was 28 inappropriate because it would improperly shift the burden of proof 18 1 at step three of the five-step evaluation process to the Commissioner 2 and turn the introductory paragraph into mere surplusage. 3 01754, 2010 WL 4877796, at *8 (E.D. Cal. Nov. 23, 2010). 4 further stated that, even in cases that applied the IQ presumption, 5 there were no intervening circumstances between the developmental 6 period and the point at which the IQ scores were recorded that had 7 caused 8 (quoting Lawson v. Astrue, No. 08-2008, 2010 WL 961722, at *5 (E.D. 9 Cal. a change Mar. 16, in intellectual 2010)) functioning. (internal quotation See marks No. 09The court id. at *7 omitted). 10 Consequently, the court held that the IQ presumption should apply 11 only when Plaintiff has provide[d] evidence supporting early onset 12 of the mental impairment and that no intervening circumstances have 13 occurred that impact Plaintiff s IQ. 14 F.3d at 189). Id. at *8 (citing Markle, 324 15 16 Rhein s reasoning is unconvincing. There, the court did nothing 17 to rebut the validity of Hodges s premise that IQ scores generally 18 remain fairly constant throughout a person s life. 19 At most, the court demonstrated that intervening circumstances (e.g., 20 a car accident) 6 can cause a reduction in IQ score. 21 Furthermore, the insistence upon requiring proof of the absence of 22 intervening circumstances is quite odd, especially given the fact 23 that the key unpublished District Court case upon which Rhein relied 24 did not put claimants in the awkward position of proving a negative. 25 See Lawson, 2010 WL 961722, at *5 (citing Branham v. Heckler, 775 26 F.2d 1271, 1274 (4th Cir. 1985); Muncy, 247 F.3d at 734) (emphasis 27 28 6 See id. at *7 8. See id. at *7. See Lawson, 2010 WL 961722, at *4 5, cited with approval in Rhein, 2010 WL 4877796, at *7. 19 1 added) (explaining that those 2 presumption 3 functioning ). 4 presumption 5 surplusage[,] Rhein, 2010 WL 4877796, at *8, entirely misses the 6 fact that the IQ presumption can be rebutted by, inter alia, evidence 7 that the claimant did not have deficits in adaptive functioning that 8 initially manifested before the age of twenty-two. 7 9 Sullivan, 979 F.2d 835, 838 39 (11th Cir. 1992). [there unless was Furthermore, turns the cases applied a] Rhein s the change rebuttable in contention introductory paragraph [IQ] intellectual that the into IQ mere See Lowery v. 10 11 In sum, the because other Hodges s District reasoning Courts is that persuasive, have adopted the Court 12 joins the IQ 13 presumption. 8 14 146190, at *4 (C.D. Cal. Jan. 11, 2013); Woods v. Astrue, No. 10- 15 2031, 2012 WL 761720, at *3 4 (E.D. Cal. Mar. 7, 2012); Forsythe v. 16 Astrue, No. 11-01515, 2012 WL 217751, at *7 (E.D. Cal. Jan. 24, 17 2012); Campbell v. Astrue, No. 09-00465, 2011 WL 444783, at *16 17 18 (E.D. Cal. Feb. 8, 2011); Schuler v. Astrue, No. 09-2126, 2010 WL 19 1443892, at *6 (C.D. Cal. Apr. 7, 2010); Walberg v. Astrue, No. 08- 20 0956, at *8 9 (W.D. Wash. June 18, 2009); Jackson v. Astrue, No. 08- 21 1623, 2008 WL 5210668, at *6 (C.D. Cal. Dec. 11, 2008). See, e.g., Flores v. Astrue, No. 11-10714, 2013 WL 22 23 24 25 26 27 28 7 Although Clark v. Astrue also refused to adopt the IQ presumption, it did so by relying on Rhein s reasoning. No. 10-2863, 2012 WL 423635, at *5 (E.D. Cal. Feb. 8, 2012). Thus, the Court need not address this case. 8 To defend against the imposition of the IQ presumption, Defendant advances the bare conclusion that the presumption inappropriately shifts the burden of proof from Plaintiff to Commissioner. (Joint Stip. 15 n. 4.) 20 1 C. 2 The ALJ s Determination That Plaintiff Does Not Meet A Listing Is Not Supported By Substantial Evidence 3 4 At step three of the five-step sequential evaluation process, 5 the ALJ found that [t]he evidence does not support a finding that 6 the claimant has the severity of symptoms required either singly or 7 in combination to meet or equal any medical listing. 8 Plaintiff argues that the Court should reverse the ALJ s decision 9 because the evidence in the record demonstrates that she met Listing (AR 27.) 10 § 12.05. 9 11 conclude on this record that Plaintiff met Listing § 12.05, the Court 12 does hold that reversal is required because the ALJ s conclusion that 13 Plaintiff did not meet . . . any medical listing is not supported 14 by substantial evidence. 10 (See Joint Stip. 7 8, 22.) Although the Court cannot 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Because Plaintiff relies upon the IQ presumption, see supra Part VII.B, she appears to be arguing that the ALJ should have considered whether her impairments met Listing § 12.05, and not whether they were medically equivalent to that listing. 10 Defendant argues that the ALJ was not required to apply Listing § 12.05 because Plaintiff did not allege (prior to the issuance of the ALJ s decision) that she was mentally retarded. (See Joint Stip. 18 19.) Even assuming that the ALJ s special duty to develop the record fully and fairly did not require him to address Listing § 12.05 in his decision, Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001), the Commissioner had the opportunity to address the listing prior to the filing of this civil action. This is because Plaintiff raised the issue before the Appeals Council. (See AR 223 24 (correspondence from Plaintiff s counsel asserting applicability of Listing § 12.05). The Appeals Council could have reversed the ALJ s decision on the basis that it was not supported by substantial evidence, 20 C.F.R. §§ 404.970(a)(2), 404.979, 416.1470(a)(2), 416.1479, and permitted the ALJ to apply the listing on remand. See 20 C.F.R. §§ 404.979, 416.1479 (permitting the Appeals Council to remand case to ALJ). Therefore, Defendant s argument is meritless. 21 1 Plaintiff has advanced evidence, which the ALJ did not expressly 2 refute, demonstrating that she is entitled to the IQ presumption and 3 that 4 § 12.05C. 5 scale IQ score of 70 provided by Dr. Taylor, (Joint Stip. 5 (citing 6 AR 278)), and the fact that the ALJ found that Plaintiff suffered 7 from 8 physical or other mental impairment prong (i.e., a seizure disorder 9 and asthma). 11 she has a physical or other mental impairment. Listing Specifically, Plaintiff has directed the Court to the full severe impairments that would satisfy (Id. at 4 (citing AR 26).) Listing § 12.05C s As discussed in Part 10 VII.A infra, satisfaction of the IQ presumption and the physical or 11 other mental impairment prong can be sufficient to meet Listing 12 § 12.05. 13 listing lacks substantial evidence. Thus, the ALJ s conclusion that Plaintiff did not meet any 14 15 Here, Defendant does not contend that Plaintiff failed to meet 16 the physical or other mental impairment prong. (See id. at 9 19.) 17 However, Defendant does contend that the IQ score is invalid and that 18 the evidence in the record shows that she did not manifest deficits 19 in adaptive functioning before the age of twenty-two. 20 11 18.) (See id. at 21 22 23 Defendant argues that, even though the ALJ never expressly addressed the validity of Plaintiff s full scale IQ score, that score 24 25 26 27 28 11 Plaintiff also asserts that Dr. Taylor s diagnosis of anxiety satisfies the physical or other mental impairment prong of Listing § 12.05C. (Joint Stip. 7.) However, the ALJ explicitly found that this impairment was not severe. (AR 31.) Because the ALJ found that Plaintiff s seizure disorder and asthma constituted severe impairments, (id. at 26), the Court need not review the ALJ s finding concerning anxiety. See Listing § 12.00A. 22 1 is invalid. 2 the ALJ s rejection of the low memory scores provided by Dr. Taylor 3 necessarily implies that Plaintiff s full scale IQ score does not 4 fall within the range provided by Listing § 12.05C. 5 AR 6 portion 7 suppression 8 memory/processing speed scores] that were commensurate with [her WMS- 9 III] scores. 10 30 (See Joint Stip. 12 13, 15 18.) (ALJ s of decision)).) Dr. Amado s of [the Defendant s opinion full scale that IQ Defendant contends that premise states score] (See id. (citing relies [there by very upon was] low the likely [working (See id. at 12 (quoting AR 292) (internal quotation marks omitted).) 11 12 Even if (1) the ALJ properly rejected the validity of the low 13 working memory score and (2) Dr. Amado s opinion is accurate, the 14 Court cannot conclude at this stage that setting aside [just] the 15 working memory score, the full scale IQ score would not meet Listing 16 [§] 12.05C. (Id. at 12.) This is because both the low working 17 memory and processing 18 contributed to the likely suppression of the full scale IQ score. 19 Because Defendant does not inform the Court as to how full scale IQ 20 scores are calculated, the Court cannot determine whether the low 21 processing speed score, even in the absence of the working memory 22 score, would have brought the full scale IQ within Listing § 12.05C s 23 range. 24 exclusion of the working memory score would increase the full scale 25 IQ score to a figure above 70. 12 26 27 28 score the low speed score would have Thus, the Court cannot conclude, on this record, that the 12 Additionally, Defendant claims that the working memory score would have been irrelevant to any analysis of the full scale IQ score, even if the ALJ had not rejected the working memory score. (See Joint Stip. 11 12, 15.) Specifically, the Defendant contends 23 1 Further, Defendant contends that Dr. Taylor s failure to 2 explicitly opine on the validity of the full scale IQ score renders 3 it invalid. 4 § 12.00 for this proposition, which states in relevant part that 5 since the results of intelligence tests are only part of the overall 6 assessment 7 accompanies the results should comment on whether the IQ scores are 8 considered valid and consistent with the developmental history and 9 the degree of functional limitation. (See id. at 15.) of [mental Defendant cites a portion of Listing retardation], the narrative report that 20 C.F.R. pt. 404, subpt. P, 10 app. 1, § 12.00D.6.a (emphasis added). Defendant cites no other 11 authority for this contention. 12 rejects Defendant s position because such a strained construction of 13 the regulations would appear to elevate form over substance. (See Joint Stip. 15.) The Court 14 15 Moreover, Defendant contends that the validity of the IQ score 16 is rebutted by substantial evidence in the form of: Dr. Amado s and 17 Dr. Debolt s opinions, Plaintiff s lack of mental health treatment 18 history, 19 without assistance). 20 ALJ did not refer to Listing § 12.05 when concluding that Plaintiff s and her admitted functional activities (See id. at 18; AR 28.) (e.g., self care However, because the 21 22 23 24 25 26 27 28 that WAIS-IV s working memory score is not a component of the full scale IQ score contemplated by Listing § 12.05C. (See id. at 11 12.) The Court need not address this issue because, regardless of the rationale for omitting the working memory score from the full scale IQ score, the Court cannot conclude on this record that the exclusion of the former score would cause the latter score to exceed the range of Listing § 12.05C. 24 1 impairments failed to meet or equal any listing, reversal and remand 2 for clarification, as opposed to affirmance, is appropriate. 13 3 In Thresher v. Astrue, the Ninth Circuit arrived at the same 4 5 conclusion when 6 474 75 7 (including 8 § 12.05 via paragraph C. 9 that (9th considering Cir. IQ 2008). scores) Thresher was Listing similar There, tending that Fed. App x advanced she 473, evidence met Listing Although the ALJ had suggested retarded[,] 12 District Court upheld the decision, reasoning that it was supported 13 by substantial evidence. 14 Barnhart, No. 06-5071 (W.D. Wash. Oct. 20, 2006); Order Adopting 15 Report & Recommendation Thresher v. Barnhart, No. 06-5071 (W.D. Wash. 16 Jan. 8, 2007). 17 could have rejected the IQ scores on the basis of (1) a psychiatric 18 expert s opinion that Thresher was not mentally retarded and (2) 19 Thresher s 20 Recommendation at 3 4 Thresher v. Barnhart, No. 06-5071 (W.D. Wash. 21 Oct. 20, 2006). reference the at not Notwithstanding to Id. did 11 failure decision. ALJ reference ALJ s her the 10 the in had establish to mentally § 12.05 283 Thresher See id. not facts. 475. listing, the Report & Recommendation at 3 4 Thresher v. Specifically, the District Court found that the ALJ daily activities and behavior. See Report & On appeal, the Ninth Circuit reversed the District 22 23 24 25 26 27 28 13 Moreover, when discussing Plaintiff s admitted functional activities, Defendant fails to cite any psychiatric authority or empirical evidence demonstrating that such activities are inconsistent with a full scale IQ score of 70. (See Joint Stip. 12, 14 16, 18.) Thus, under the Brown v. Secretary of Health & Human Services, 948 F.2d 268 (6th Cir. 1991) approach, the Court could not reject Plaintiff s full scale IQ score on that basis. See infra note 4. Defendant fails to explain why the Court should not follow the reasoning of Brown. (See Joint Stip. 9 19.) Accordingly, Defendant s position on this issue is weak. 25 1 Court s decision. Thresher, 2 reasoned that the ALJ s failure to explicitly reject the IQ score 3 indicated that it [was] unclear whether the ALJ came to grips with 4 the specific requirements of [Listing § 12.05] when she issued her 5 decision. 6 record that could have rebutted the validity of the IQ score, remand 7 for clarification was appropriate. Id. at 475. 283 Fed. App x at 474. The court Thus, notwithstanding the evidence in the See id. 8 9 In light of Thresher, the court reverses the decision of the ALJ 10 and remands for clarification regarding the validity of Plaintiff s 11 IQ score such that the ALJ can articulate precisely what was decided 12 and why. 13 Cir. 2001); Christner v. Astrue, 498 F.3d 790, 794 (8th Cir. 2007)). Id. (citing Pinto v. Massanari, 249 F.3d 840, 848 (9th 14 15 Defendant further argues that the available evidence forecloses 16 any conceivable inference that Plaintiff had any adaptive deficits 17 before 18 presence of evidence that could rebut the IQ presumption, it [is] 19 unclear whether the ALJ came to grips with the specific requirements 20 of 21 Thresher, 22 decision and remand for clarification on this issue is appropriate. 14 23 See id. age 22. [Listing 283 § (Joint 12.05] Fed. Stip. when App x at 14.) [the 475. Again, ALJ] notwithstanding issued Thus, [his] reversal of the decision. the ALJ s 24 25 26 27 28 14 Defendant further argues that, even if the ALJ erred by failing to discuss Listing § 12.05, the error was harmless because there is evidence in the record that Defendant believes would rebut the IQ presumption. (See Joint Stip. 19 (citing Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)).) Nonetheless, District Courts review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he 26 1 D. Scope Of Remand 2 3 Remanding a matter for further proceedings, as opposed to 4 remanding for an award of benefits, is inappropriate when the record 5 demonstrates 6 benefits. 7 2007). 8 must be resolved before a determination can be made, and it is not 9 clear from the record that the ALJ would be required to find the 10 plaintiff disabled, a court should remand for further administrative 11 proceedings. 12 2004); see also Thresher, 283 Fed. App x at 475 (remanding case when 13 it was unclear whether ALJ came to grips with specific requirements 14 of Listing § 12.05C). 15 it is not clear whether the ALJ would be required to find Plaintiff 16 disabled 17 remands this matter for further administrative proceedings. that the ALJ would clearly be required to award Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. On the other hand, when there are outstanding issues that See Benecke v. Barnhart, 379 F.3d 587, 593 96 (9th Cir. had the ALJ For the reasons discussed in Part VII.C infra, applied Listing § 12.05. Thus, the Court 18 19 In an effort to terminate these proceedings and avoid any 20 confusion or misunderstanding as to what the Court intends, the Court 21 shall set forth the scope of the remand proceedings. 22 23 24 25 26 27 28 Upon remand, [or she] did not rely. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (emphasis added) (citing Connett v. Barnart, 340 F.3d 871, 874 (9th Cir. 2003)). Here, although the ALJ relied on some of the evidence cited by Defendant to reject Plaintiff s low memory scores, the ALJ did not address much of Defendant s other evidence (e.g., Dr. Amado s opinion). (See infra Part V; Joint Stip. 11 18.) Thus, Defendant has failed to properly show that it is clear from the record that the ALJ s error was inconsequential to the ultimate nondisability determination. Tommasetti, 533 F.3d at 1038 (internal quotation marks omitted) (quoting Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 56 (9th Cir. 2006)). 27 1 the ALJ shall assess whether Plaintiff s impairments, either 2 individually or in combination, meet Listing § 12.05. 3 the ALJ shall consider: (1) whether Plaintiff s full scale IQ score 4 of 70 is valid, and (2) whether Plaintiff manifested deficits in 5 adaptive functioning before the age of twenty-two. 6 ALJ shall further develop the factual record if he finds that there 7 is ambiguous evidence or . . . the record is inadequate to allow for 8 proper evaluation of the evidence. 9 453, 459 60 (9th Cir. 2001). Specifically, In so doing, the Mayes v. Massanari, 276 F.3d In the event that the ALJ concludes 10 that Plaintiff s impairments, either individually or in combination, 11 do not meet Listing § 12.05, the ALJ shall adequately articulate the 12 rationale for that conclusion. 13 (9th Cir. 2001) ( An ALJ must evaluate the relevant evidence before 14 concluding that a claimant s impairments do not meet or equal a 15 listed impairment. 16 a conclusion that a claimant s impairment does not do so. ). 17 / / 18 / / 19 / / 20 / / 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 28 / / See Lewis v. Apfel, 236 F.3d 503, 512 A boilerplate finding is insufficient to support 28 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, the Court REVERSES the decision 5 of the Commissioner and REMANDS this matter to the Commissioner for 6 further administrative action consistent with this Order. 7 of the Court shall serve copies of this Order and the Judgment on 8 counsel for both parties. The Clerk 9 10 11 12 13 Dated: December 20, 2013 ____/s/_________________________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

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