Borders v. Commissioner Social Security Administration, No. 2:2013cv01985 - Document 27 (D. Or. 2014)

Court Description: Opinion and Order. The Commissioner's decision is REVERSED and this case is REMANDED FOR PAYMENT OF BENEFITS. See formal Opinion and Order. Signed on 12/3/2014 by Chief Judge Ann L. Aiken. (rh)

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Borders v. Commissioner Social Security Administration Doc. 27 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON GRACE EVELYN A. BORDERS, Case No. 2:13-cv-01985-AA OPINION AND ORDER Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. Nancy J. Meserow Attorney at Law 7540 S.W. 51st Avenue Portland, Oregon 97219 Attorney for plaintiff S. Amanda Marshall United States Attorney Ronald K. Silver Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97201 Richard A. Morris Social Security Administration Office of the General Counsel 701 5th Ave, Suite 2900 M/S 221A Seattle, Washington 98104 Attorneys for defendant Page 1 - OPINION AND ORDER Dockets.Justia.com AIKEN, Chief Judge: Plaintiff Grace Evelyn Borders brings this action pursuant to the Social Security Act final decision of ("Commissioner"). ("Act") the to obtain judicial review of a Commissioner of Social Security The Commissioner denied plaintiff's application for Title XVI supplemental security income ("SSI") under the Act. For the reasons Commissioner's set forth below, this and remands the decision Court case reverses for the payment of benefits. PROCEDURAL BACKGROUND On August 7, 883. 2 009, plaintiff applied for SSI. Tr. 17, 8 7 8, The Social Security Administration denied her application initially and upon reconsideration. Tr. 17. On March 15, 2012, an administrative law judge ("the ALJ") conducted a hearing, at which plaintiff testified representation. Tr. over 40-41, testified at the hearing. the 175, Tr. 17. phone 367. and without legal A vocational expert also Thereafter, plaintiff obtained representation and sought a supplemental hearing to further develop the record. Tr. 17, 367, 176-78. On June 22, 2012, the ALJ issued a decision denying plaintiff's request for a supplemental hearing and finding the plaintiff not disabled within the meaning of the Act. Tr. 17-2 6. request for review, After the Appeals Council denied her plaintiff sought judicial review from this Court, requesting the Court reverse the ALJ's decision and remand the case for the payment of benefits. Pl.'s Opening Br. 34-35. In its response, defendant conceded the ALJ erred and moved that the Page 2 - OPINION AND ORDER Court reverse and remand for further proceedings. Def.'s Br. Mot. Remand 14. STATEMENT OF FACTS Born on Dec. 18, 1981, plaintiff was 27 years old when she applied for benefits and 30 at the time of the hearing. Plaintiff alleges disability since birth. Tr. 182. Tr. 38. When she was 7 years old, doctors diagnosed plaintiff with neurofibromatosis, a genetic disorder characterized by the formation of multiple nerve tumors sometimes on the brain and spinal cord. Tr. 397. Specifically, plaintiff suffers from neurofibromatosis type 1, a progressive disorder that worsens with age and can cause learning disabilities, cosmetic disfigurement, headaches, and cardiovascular complications. 1 Tr. 498, 820-21, 398. From a very young age, educators and psychologists identified plaintiff as suffering from borderline intellectual ability and learning disabilities likely related to her neurofibromatosis. 397-99. Tr. From the age of 6, plaintiff attended special education classes, eventually graduating high school with a modified diploma indicating she failed to meet minimum graduation standards. 2 Tr. 1 See NINDS Neurofibromatosis Fact Sheet, National Institutes of Health, http://www.ninds.nih.gov/disorders/neurofibromatosis/detail neuro fibromatosis.htm (last visited November 14, 2014). 2 Both in her opinion and in the hearing, the ALJ misstated plaintiff's vocational qualifications as including a "high school education." Tr. 24, 63. However, a high school education requires "abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above." 20 C.F.R. § 416.964(b) (4). Here, the record shows plaintiff did not meet those standards. Tr. 370. Page 3 - OPINION AND ORDER 370, 397. In 2008, when plaintiff was 26 years old, she received a full scale IQ score of 70, and, scale score of 75. in 2010, she received a full- Tr. 660, 843. After high school, plaintiff worked temporary and cashier jobs but struggled to maintain employment for more than a few months. Tr. 24 0, 301. 3 301-09. Plaintiff reports no employment since 2005. Tr. Over the years, plaintiff lived with family and friends, "under bridges," and in homeless shelters. Tr. 655, 658, 841, 883. In 2009, doctors discovered plaintiff had a brain lesion and multiple brain tumors including one on her optical nerve and referred plaintiff to a neurosurgeon to assess whether they were malignant. Tr. 820-21, 875. The doctors attributed the growths to Id. Also, on several occasions, doctors her neurofibromatosis. observed neurofibroma tumors on plaintiff's face and body. Tr. 498, 564, 889. In addition to neurofibromatosis and borderline intellectual functioning, asthma, the obesity, depression. Tr. ALJ and 19. acknowledged adjustment Dr. that plaintiff disorder James Ewell, with suffers from anxiety and a psychologist with the state Department of Human Services, also diagnosed plaintiff with post-traumatic disorder. Tr. stress 655-56. disorder and an unspecified cognitive Plaintiff alleges she cannot work due to symptoms that include migraine headaches, visual impairment, dizzy 3 In her longest stretch of employment, plaintiff reports that she worked for more than one year assisting at a daycare center, but the record shows the job was supported as part of her high school vocational training program. Tr. 240, 301, 384, 38991. Page 4 - OPINION AND ORDER spells, dyslexia, problems concentrating, anxiety, panic attacks, and difficulty communicating with coworkers. Tr. 48, 202-03, 325, 354. STANDARD OF REVIEW In general, the Court must affirm the Commissioner's decision if it is based on proper legal standards and the findings supported by substantial evidence in the record. are Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere such relevant scintilla. It means evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). weigh "both the evidence that [Commissioner's] conclusions." supports and The Court must detracts from the Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The initial burden establish disability. Cir. 1986). of proof rests upon the claimant to Howard v. Heckler, 782 F.2d 1484, 1486 (9th To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. The Commissioner has § 423(d) (1) (A). established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. Commissioner evaluates whether Page 5 - OPINION AND ORDER a § 416.920. claimant is Bowen v. First, the engaged in "substantial C.F.R. gainful activity." 416.920(b). § Yuckert, 482 U.S. at 140; 20 If so, the claimant is not disabled. At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920©. If the claimant does not have a severe impairment, he is not disabled. At step three, the claimant's impairments, equal "one of [Commissioner] a Commissioner number of acknowledges 416.920(d). § whether the either singly or in combination, meet or If listed are substantial gainful activity." C.F.R. resolves so, so impairments severe Yuckert, the as 482 U.S. claimant is that to the preclude at 140-41; 20 presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national and local economy. & (f). Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 416.920(e) If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 416.966. THE ALJ'S FINDINGS At step one of the five-step evaluation process outlined above, the ALJ found that plaintiff had not engaged in substantial Page 6 - OPINION AND ORDER gainful activity since the application date. the ALJ determined impairments: that plaintiff neurofibromatosis, had Tr. 19. the asthma, At step two, following obesity, severe borderline intellectual functioning, adjustment disorder with anxiety, depression. step Tr. 19. At three, the ALJ and determined that plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Finding that plaintiff disability at step evaluation process three, to did the determine affected her ability to work. not ALJ Tr. 19-21. establish continued how presumptive the plaintiff's Tr. 21-22. sequential impairments The ALJ determined that plaintiff had the residual functional capacity ("RFC") to perform "a range of light work as defined in 20 C.F.R. 416.967(b) ." Id. Specifically, in an eight-hour work day, plaintiff was limited to sitting, standing, and walking for no more than six hours. Id. The ALJ also found that plaintiff could perform simple and detailed tasks, but nothing complex. Moreover, she could only have superficial and incidental contact with the public, and she could not be required to perform under fast-paced or strict production quotas. Tr. 22. At step four, the ALJ concluded that plaintiff was not capable of performing any of her past relevant work as a fast food and daycare worker. Tr. 24. At step significant five, numbers the ALJ determined in the national that and jobs local plaintiff could perform despite her impairments, helper, motel cleaner, and document clerk. Page 7 - OPINION AND ORDER Tr. 25. existed economy in that such as office As such, the ALJ concluded that plaintiff was not disabled under the Act. Id. DISCUSSION The Commissioner concedes that the ALJ erred and the Court should reverse the ALJ's decision. As such, the only contested issue before this Court is whether to find the plaintiff disabled and remand for payment of benefits or to find the evidence inconclusive and remand for further proceedings. The Court should remand for further administrative proceedings if further development of the record would be useful. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Conversely, when the evidence shows the plaintiff is disabled and no useful purpose would be served by enhancement of the record, the Court should remand for the immediate payment of benefits. Strauss v. Comm'r of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). its determination, remand for In making the Court should credit rejected evidence and benefits if ( 1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) it is clear that if such evidence were credited, the ALJ would be required to find the claimant disabled; and (3) there are no outstanding issues that must be resolved before a determination of disability can be made. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Here, the Commissioner concedes that the ALJ erred by failing to assess whether the plaintiff was presumptively disabled under Listing 12.05C, by not addressing Dr. James Ewell's medical opinion and a lay witness statement which described plaintiff's disabilities, and by failing to account for all of the limitations Page 8 - OPINION AND ORDER identified by state reviewing psychologist Joshua J. Boyd, Psy.D. Def. 's Br. Mot. Commissioner Remand 12. contends Despite these admitted errors, further evidence and/or proceedings needed to determine whether plaintiff meets Listing 12.05C. 8. the are Id. at The Court disagrees. A. Listing 12.05C The Social Security Regulations "Listing of Impairments" enumerates and establishes criteria for impairments so severe they preclude a Sullivan, person from performing gainful 911 404.1520(d). F.2d 180,183-84 (9th Cir. activity. Young v. 1990); C.F.R. 20 § At step three of the five-step disability analysis, the ALJ considers whether the claimant meets any of the listings. If the claimant meets all of the requirements for any one of the listings, the ALJ is required to find the claimant disabled and award benefits. 20 C.F.R. § 404.1520(d); see Bowen v. City of New York, 476 U.S. 467, 471 (1986) ("If a claimant's condition meets or equals the listed impairments, he is conclusively presumed to be disabled and entitled to benefits") . Here, the ALJ considered several listings but inexplicably failed to mention Listing 12.05C, which pertains to "intellectual disability." show: ( 1) In order to meet Listing 12. 05C, subaverage intellectual a claimant must functioning with deficits in adaptive functioning initially manifested before age 22; (2) a valid IQ score of 60 to 70; and (3) a physical or other mental impairment imposing an additional and significant work-related limitation. Kennedy v. Colvin, 738 F.3d 1172, Page 9 - OPINION AND ORDER 1176 (9th Cir. 2013); see 20 C.F.R. pt. 404, subpt. P, app. 1, Plaintiff 12. 05C and argues thus Commissioner the responds she §§ 12.05, 12.05C. as qualifies Court that should the disabled remand Court for cannot under Listing benefits. make the The 12.05C determination on the evidence presented and thus should remand for further development of the record. The Commissioner concedes, however, that plaintiff satisfies the third prong of 12.05C in that she "has a physical or other mental impairment imposing an additional and significant work-related limitation or function." Def.'s Br. Mot. Remand 12. As such, the Court need only consider the remaining two criteria for 12.05C. 1. Onset Before Age 22 Listing 12. 05C requires the claimant to demonstrate "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested" before age 22. 20 C.F.R. Pt. 404, Subpt. P, app. 1 § 12.05. The Diagnostic and Statistical Manual of Mental Disorders describes deficits in adaptive functioning as "how well a person meets community standards of personal independence and social responsibility, in comparison to others of similar age and socioeconomic background." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 37 (5th ed. 2013). The claimant need not show a diagnosis of mental retardation or an IQ score in that range before age 22 in order to meet the onset requirement. Pedro v. Astrue, 849 F. Supp. 2d 1006, 1010-11 Astrue, 695 Supp. 2d 1049, 1061 F. Page 10 - OPINION AND ORDER (D. (C.D. Or. 2011); Gomez v. Cal. 2010). Rather, courts consider circumstantial evidence such as special education classes, graduation, difficulties skilled work history." "attendance in dropping out of high school prior to in reading, writing or math, and low Pedro, 849 F. Supp. 2d at 1011-12; Knarr v. Astrue, 2012 WL 1194319, at *5 (D. Or. Apr. 9, 2012). The Court finds ample evidence deficits before the age of 22. that plaintiff suffered School records show plaintiff began attending special education classes when she was 6 years old and continued until graduation from high school. Tr. 370, 397. At age 7, plaintiff was diagnosed with neurofibromatosis, a degenerative genetic disorder that can cause intellectual impairment and other symptoms which worsen over time. Tr. 397, 662. Throughout her childhood years, plaintiff received IQ scores in the 70s and low 80s and was diagnosed with borderline intellectual functioning. Tr. 397, 399, 401. When plaintiff was a 13-year-old seventh grader, her school psychologist noted that she was achieving "well below the mean in all academic skill areas" at roughly the level of a second-grader. Tr. 4 01. He said he suspected her neurofibromatosis could be causing her to learn at an even slower rate than predicted by her ability test results. Id. school, continued struggle despite a modified academically, receiving computers and other courses. received a curriculum, modified diploma plaintiff several Tr. 370. because D's and F' s In high to in math, Upon graduation, plaintiff she did not meet minimum graduation standards as measured by the math and reading portions of the Portland Graduation Standards Test. Page 11 - OPINION AND ORDER Id. Before age 22, plaintiff worked several unskilled jobs and struggled to hold onto them for more than a few months. Tr. 301-09. There is no need for further administrative proceedings in order to conclude that plaintiff meets the early onset requirement for disability under 12.05C. The ALJ's opinion did not consider 12.05C and thus did not address any of the evidence of early onset. Regardless, the ALJ would not have had legally sufficient reasons to reject the evidence, given that it comes from plaintiff's school records, which consistently and reliably document plaintiff's low aptitude and poor credited as true, academic the achievement. evidence shows Tr. 370-401. plaintiff When demonstrated "significantly subaverage general intellectual functioning" before the age of 22. 2. IQ Score between 60 and 70 Listing 12.05C also requires a "valid verbal, performance, or full scale IQ of 60 through 70." 1, § 12.05C. 20 C.F.R. pt. 404, subpt. P, app. Regulations require that in the cases in which the type of IQ test administered yields multiple scores "e.g., where verbal, performance, and full scale IQs are provided" in a single test such as in a Wechsler series test, courts must use the lowest of the scores when assessing whether a claimant meets 12.05C. C.F.R. pt. 404, subpt. P, app. 1, § 12.00(D) (6) (c). 20 Moreover, courts in the Ninth Circuit have interpreted the regulations to prefer the lowest score not just from a single test but also from among multiple IQ tests. Ray v. Chater, 934 F. Supp. 34 7, 350 (N.D. Cal. 1996); Low v. Colvin, 2014 WL 4968285, at *5 (E. D. Cal. Page 12 - OPINION AND ORDER Sept. 30, 2014). As such, when evaluating whether a claimant with multiple IQ tests qualifies as intellectually disabled, courts use the lowest valid verbal, performance, or full scale IQ score from among all of the tests. See, e.g., Hutnick v. Colvin, 2014 WL 880360, at *5 (E. D. Cal. March 5, 2014); Anthony v. Colvin, 2014 WL 3792780, at *3 (C.D. Cal. July 31, 2014). Courts have adhered to this rule even when the claimant's most recent IQ score is the higher score and does not qualify under 12. 05C. Bowen, 827 F.2d 631, 633 (9th Cir. 1987) satisfied where claimant had See Fanning v. (IQ requirement for 12.05C qualifying score in 1982 and nonqualifying score in 1983); Lewis v. Astrue, 2008 WL 191415, at *6 (N.D. relevant Cal. to Jan. Listing 22, 2008) 12.05C (only claimant's regardless of lowest whether score is the record contains a subsequent higher score). Although school officials tested plaintiff's IQ three times before she reached 14 years old, the regulations provide that a claimant's IQ scores from between the ages of 7 and 16 are only valid for two years. 1, § 112D(10). Tr. 397-99; 20 C.F.R. pt. 404, subpt. P, app. Given that plaintiff is now more than 30 years old, these childhood tests, with low scores ranging from 72-74, are no longer valid. 4 The record contains only two sets of valid IQ scores, one from 2008 and the other from 2010. the 2008 test, Tr. 660, 843. In plaintiff received the following IQ scores: Verbal- 4 The Commissioner cites a 1988 IQ test in its brief, however, that test was administered when plaintiff was 6 years old and ceased being valid more than 24 years ago. Def.'s Br. Mot. Remand 11. Page 13 - OPINION AND ORDER Tr. 71; Performance- 74; and Full Scale IQ- 70. 660. In 2010, plaintiff's scores were as follows: Verbal- 80; and Full Scale IQ75. Tr. 843. The lowest of these valid scores is 70, and thus, plaintiff meets the IQ requirement for Listing 12.05C. The ALJ results. failed to even mention plaintiff's 2008 test Moreover, the Court finds the 2008 scores to be reliable Dr. and valid. comprehensive Ewell administered the psychological evaluation Department of Human Services, IQ test in order as to part of assist Child Welfare Program ( "DHS") determining proper custody of plaintiff's two children. 663. IQ a the in Tr. 653, The record indicates plaintiff, at times, hid and downplayed her disabilities, "faking good" possibly with the hope of retaining custody of her children. evaluation with Dr. Tr. 212, 661, 689. Ewell, plaintiff had As such, in her DHS the incentive inclination to perform her best on the 2008 IQ test. and Indeed, Dr. Ewell credited her low IQ score, finding she was at the "cut-off between Mild Functioning." Mental Retardation Tr. 655. and Borderline Intellectual He added: The prognosis for Ms. Borders is seen as poor. Her cognitive deficits will most likely not change. As a result, her judgment and decision-making will most likely remain impaired. She has had difficulty living independently, or functioning as an independent parent in the past. I would have severe reservations regarding the likelihood of her doing so in the future. Tr. 662. The Court finds plaintiff's 2008 scores valid. required to use the Since the court is lowest valid IQ score in conjunction with Listing 12.05C, further IQ testing or other proceedings would not alter the Court's conclusion. Page 14 - OPINION AND ORDER Plaintiff meets all the requirements for Listing 12.05C. CONCLUSION Based on the evidence in the record, the ALJ should have found plaintiff presumptively disabled under Listing 12. 05C. Further administrative proceedings would only delay plaintiff's receipt of benefits and would not alter the outcome of this case. As such, the Commissioner's decision is REVERSED and this case is REMANDED FOR PAYMENT OF BENEFITS. IT IS SO ORDERED. Dated this of December 2014. Ann Aiken United States District Judge Page 15 - OPINION AND ORDER

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