Adams v. Commissioner of Social Security, No. 2:2015cv00353 - Document 19 (E.D. Wash. 2017)

Court Description: ORDER Granting Plaintiff's 15 Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

Download PDF

Adams v. Commissioner of Social Security Doc. 19 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Mar 06, 2017 1 SEAN F. MCAVOY, CLERK 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 BRIAN ADAMS, 10 Plaintiff, 11 v. 12 13 14 No. 2:15-CV-00353-JTR ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 15 Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 No. 15,2 16. Attorney Randi L. Johnson represents Brian Adams (Plaintiff); 19 Special Assistant United States Attorney Ryan Lu represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 22 1 Nancy A. Berryhill became the Acting Commissioner of Social Security on 23 January 20, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 24 Nancy A. Berryhill is substituted for Carolyn W. Colvin as the Defendant in this 25 suit. No further action need be taken to continue this suit by reason of the last 26 sentence of 42 U.S.C. § 405(g). 27 28 2 The Court requests that future filings conform with Local Rules 7.1(e) and 10.1(a)(2), including a typeface of 14 points or more. ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 magistrate judge. ECF No. 6. After reviewing the administrative record and the 2 briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 3 Judgment; DENIES Defendant’s Motion for Summary Judgment; and 4 REMANDS the matter to the Commissioner for additional proceedings pursuant to 5 42 U.S.C. § 405(g). JURISDICTION 6 7 Plaintiff filed applications for Adult Disabled Child Insurance and 8 Supplemental Security Income (SSI) Benefits on February 3, 2012, alleging 9 disability since December 25, 1985,3 due to low IQ scores, torn ACL, knee injury, 10 depression, attention deficit hyperactivity disorder (ADHD), learning disability, 11 memory, slight blindness, obesity, and trouble standing and walking. Tr. 274-282, 12 334, 338. The applications were denied initially and upon reconsideration. Tr. 13 171-177, 179-183. Administrative Law Judge (ALJ) R.J. Payne held hearings on 14 November 18, 2013, and February 24, 2014, and took testimony from Reuban 15 Beezy, M.D., Stephen Rubin, Ph.D., and Margaret Moore, Ph.D. Tr. 38-69. ALJ 16 Moira Ausems held a hearing on May 22, 2014, and heard testimony from Plaintiff 17 and vocational expert K. Diane Kramer. Tr. 70-98. ALJ Ausems issued an 18 unfavorable decision on July 24, 2014. Tr. 12-31. The Appeals Council denied 19 review on November 20, 2015. Tr. 1-6. The ALJ’s July 24, 2014, decision 20 became the final decision of the Commissioner, which is appealable to the district 21 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 22 on December 22, 2015. ECF No. 1, 4. 23 24 3 Child Benefits based on the disability of the child are not payable until the 25 child’s eighteenth birthday, 20 C.F.R. §§ 404.350, 404.351, and SSI Benefits are 26 not payable prior to the application date, 20 C.F.R. §§ 416.202, 416.501. 27 Therefore, the relevant time period for eligibility begins with Plaintiff’s eighteenth 28 birthday, December 25, 2002. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 STATEMENT OF FACTS 2 The facts of the case are set forth in the administrative hearing transcript, the 3 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 4 here. 5 Plaintiff was 18 years old at the beginning of the relevant time period. 6 Plaintiff completed the twelfth grade in 2005. Tr. 339. As part of his education, 7 Plaintiff was enrolled in special education courses. Id. Plaintiff additionally took 8 some caregiving classes in 2011. Id. Plaintiff was working as a caregiver at the 9 time of the application. Id. Additionally, Plaintiff had past work experiences 10 11 12 caring for animals in a doggie daycare. Id. STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 13 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 14 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 15 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 16 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 17 not supported by substantial evidence or if it is based on legal error. Tackett v. 18 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 19 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 20 another way, substantial evidence is such relevant evidence as a reasonable mind 21 might accept as adequate to support a conclusion. Richardson v. Perales, 402 22 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 23 interpretation, the court may not substitute its judgment for that of the ALJ. 24 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 25 findings, or if conflicting evidence supports a finding of either disability or non- 26 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 27 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 28 substantial evidence will be set aside if the proper legal standards were not applied ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 in weighing the evidence and making the decision. Brawner v. Secretary of Health 2 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 3 SEQUENTIAL EVALUATION PROCESS 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 6 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 7 through four, the burden of proof rests upon the claimant to establish a prima facie 8 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 9 burden is met once the claimant establishes that physical or mental impairments 10 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 11 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work, 12 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 13 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 14 exist in the national economy which the claimant can perform. Batson v. Comm’r 15 of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If the claimant cannot 16 make an adjustment to other work in the national economy, a finding of “disabled” 17 is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 18 ADMINISTRATIVE DECISION On July 24, 2014, the ALJ issued a decision finding Plaintiff was not 19 20 disabled as defined in the Social Security Act. 21 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 22 activity since December 25, 2003, the beginning of the relevant time period. Tr. 23 15. 24 At step two, the ALJ determined Plaintiff had the following severe 25 impairments: borderline intellectual functioning; Attention Deficient 26 Hyperactivity Disorder (ADHD); major depressive disorder; marijuana 27 dependence; morbid obesity; and right knee torn ACL with degenerative joint 28 disease. Tr. 15. ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 At step three, the ALJ found Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled the severity of one of 3 the listed impairments. Tr. 15. 4 5 6 7 8 9 10 11 12 13 14 15 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined he could perform a range of light work with the following limitations: The claimant is able to stand/walk for a total of two hours in an eight hour workday and sit for a total of six hours in an eight hour workday. He is able to lift/carry 20 pounds occasionally and 10 pounds frequently. He is not able to climb ladders, ropes, or scaffolds and he can occasionally climb stairs and ramps. He is not able to kneel, crouch, or crawl and he can occasionally stoop and balance. He needs to avoid hazardous machinery, unprotected heights, and commercial driving. The claimant is able to perform simple and routine tasks. He needs supportive supervision, but not an accommodated setting. Tr. 18. The ALJ concluded that Plaintiff had no past relevant work. Tr. 30. At step five, the ALJ determined that, considering Plaintiff’s age, education, 16 work experience and residual functional capacity, and based on the testimony of 17 the vocational expert, there were other jobs that exist in significant numbers in the 18 national economy Plaintiff could perform, including the jobs of sorter, electrical 19 assembler, and mail clerk. Tr. 31. The ALJ thus concluded Plaintiff was not under 20 a disability within the meaning of the Social Security Act at any time from 21 December 25, 2003, through the date of the ALJ’s decision, July 24, 2014. Tr. 31. 22 ISSUES 23 The question presented is whether substantial evidence supports the ALJ’s 24 decision denying benefits and, if so, whether that decision is based on proper legal 25 standards. Plaintiff contends the ALJ erred by (1) failing to consider lay witness 26 testimony; (2) failing properly consider whether Plaintiff met listing 12.05C; (3) 27 failing to properly weigh medical opinions; and (4) failing to meet her burden at 28 step five. ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 2 3 4 5 DISCUSSION A. Lay Witness Testimony Plaintiff challenges the ALJ’s failure to discuss the statement of Plaintiff’s mother, Denise Adams. ECF No. 15 at 5. An ALJ is required to consider evidence from “other sources,” including the 6 evidence from family and friends, 20 C.F.R. §§ 404.1513(d), 416.913(d), “as to 7 how an impairment affects a claimant’s ability to work,” Sprague, 812 F.2d at 8 1232. An ALJ must give reasons that are “germane” to each whiteness to discount 9 the testimony of each lay witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 10 1993). 11 On September 23, 2013, Ms. Adams wrote a letter regarding Plaintiff’s 12 educational history and functional limitations. Tr. 416-418. Specifically, Ms. 13 Adams detailed Plaintiff’s attendance in special education courses, his social 14 interactions during his school years, and some of his work history. Id. The ALJ’s 15 decision is void of any reference to the letter. Tr. 12-31. 16 The ALJ’s failure to consider Ms. Adams’ letter is error. See 20 C.F.R. §§ 17 404.1513(d), 416.913(d). However, Defendant argues that this error was harmless 18 because Ms. Adams’ statements were not significantly different from Plaintiff’s 19 statements and the ALJ provided legally sufficient reasons for rejecting Plaintiff’s 20 testimony. ECF No. 16 at 9-10, citing Molina v. Astrue, 674 F.3d 1104, 1122 (9th 21 Cir. 2012). However, a review of Plaintiff’s testimony provided at the hearing 22 shows that while there were some similarities between the testimony and Ms. 23 Adams’ letter, such as his history of special education, getting fired for leaving the 24 door open while working for the dog groomer, and his difficulty getting along with 25 individuals in authority, Tr. 80-82, 90, Ms. Adams’ letter addressed additional 26 subjects not covered by Plaintiff’s testimony, such as his difficulties with personal 27 hygiene, his threatening postures towards students and teachers, his difficulty 28 focusing, and that his special education program involved being isolated from the ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 general population at school by using a different entrance, not being allowed in the 2 hallways without an adult, and not being able to eat with the other students, Tr. 3 416-418. As such, Molina is not applicable to this case and a remand is necessary 4 for the ALJ to properly consider, discuss, and weigh Ms. Adams’ letter. 5 B. 6 7 8 Listing 12.05C Plaintiff argues the ALJ erred at step three in finding that Plaintiff did not meet listing 12.05C. ECF No. 15 at 7-10. At step three of the sequential evaluation for disability, a claimant must 9 establish that he has an impairment that meets or equals a listed impairment. See 10 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To satisfy Listing 12.05C, a 11 claimant must show he has the following: (1) subaverage intellectual functioning 12 with deficits in adaptive functioning initially manifested before age 22; (2) a valid 13 verbal, performance, or full scale IQ score of 60 to 70; and (3) a physical or other 14 mental impairment imposing an additional and significant work-related limitation. 15 See 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.05C; Kennedy v. Colvin, 738 F.3d 16 1172, 1175-1176 (9th Cir. 2013). POMS DI 24515.020 states that “IQ scores tend 17 to stabilize by the age of 16. Regardless of the claimant’s age at adjudication, 18 reliable IQ testing obtained at age 16 or older is valid to support the IQ findings 19 required under listing 12.05.” 20 The ALJ found that Plaintiff had borderline intellectual functioning rather 21 than an intellectual disability. Tr. 17. She further found that while Plaintiff’s 22 childhood IQ testing showed verbal IQ scores of 70, she found the IQ testing 23 administered during adulthood were more reliable giving weight to the opinion of 24 the psychological expert. Id. Therefore, the ALJ found Plaintiff did not meet 25 Listing 12.05C. Id. In her briefing, Defendant conceded that Plaintiff met the 26 third prong of Listing 12.05C, but argued that the ALJ found Plaintiff lacking in 27 the first two prongs. ECF No. 16 at 6. 28 In 1994, at the age of 8, Plaintiff had a verbal IQ of 66, a performance IQ of ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 83, and a full scale IQ of 73. Tr. 657. In 1997, at the age of 11, Plaintiff had a 2 verbal IQ of 72, a performance IQ of 81, and a full scale IQ of 75. Tr. 645. In 3 1998, at the age of 12, Plaintiff had a full scale IQ of 78, verbal IQ of 70, and 4 performance IQ of 87. Tr. 422, 725. In 2000, at the age of 14, Plaintiff had a full 5 scale IQ of 73, a verbal IQ of 70, and a performance IQ of 80. Tr. 422, 683, 685. 6 In 2003, at the age of 17, Plaintiff had a verbal IQ of 63, a performance IQ of 89, 7 and a full scale IQ of 74. Tr. 699. In 2010, at the age of 24, Plaintiff had a full 8 scale IQ of 77, a verbal comprehension of 81, a perceptual reasoning of 86, a 9 working memory of 74, and a processing speed of 79. Tr. 432. In 2012, at the age 10 of 26, Plaintiff had a full scale IQ of 83, a verbal comprehension of 80, a 11 perceptual reasoning of 98, a working memory of 80, and a processing speed of 86. 12 Tr. 529. In 2013, at the age of 27, Plaintiff had a full scale IQ of 84, a verbal 13 comprehension of 87, a perceptual reasoning of 96, a working memory of 74, and a 14 processing speed of 86. Tr. 728, 734. 15 First, the ALJ only considered the 1998, 2000, 2010 and 2012 scores in 16 considering Listing 12.05C. Second, the ALJ found that the intelligence testing as 17 an adult was more reliable than the testing performed as a child, citing testimony 18 from “the psychological expert.” Tr. 17. Two psychological experts testified at 19 different hearings in this case: Dr. Rubin and Dr. Moore. Dr. Rubin testified that 20 there must have been some error in the 2012 intelligence testing, at age 26, because 21 Plaintiff had an uncharacteristic matrix reasoning score of 15. Tr. 47-48. 22 Likewise, Dr. Moore testified that the provider who administered the 2012 23 intelligence testing “did this claimant a disservice and really did not really 24 carefully look at her own testing results.” Tr. 6. Dr. Moore concluded that the 25 2012 testing showed a learning disability and not overall borderline intellectual 26 functioning. Id. She further testified that Plaintiff’s subtests scores across time 27 supported a learning disorder. Tr. 61-62. 28 The ALJ was nonspecific as to which expert she was referring to when she ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 concluded that “the psychological expert” inferred that adult scores were a more 2 reliable source for claimant’s current cognitive abilities. Tr. 12. However, a 3 review of the testimony from both psychological experts does not support this 4 conclusion as Dr. Rubin questioned the validity of the 2012 testing and Dr. Moore 5 questioned the provider’s reading of the 2012 testing. Additionally, the ALJ gave 6 no weight to Dr. Rubin’s opinion and only little weight to Dr. Moore’s opinion. 7 Tr. 26-27. Therefore, substantial evidence does not support the ALJ’s conclusion 8 that adult scores were more reliable than childhood scores when determining if 9 Plaintiff met or equaled 12.05C. 10 This case is remanded for the ALJ to properly consider all the intelligence 11 testing in the file and to make a new step three determination that is supported by 12 substantial evidence. Additionally, the Court notes that neither Dr. Rubin nor Dr. 13 Moore provided any testimony as to Listing 12.05C. Tr. 47-53, 63-64. 14 Considering the low IQ scores prior to age 22, the ALJ is instructed to take 15 testimony from a psychological expert specifically regarding whether or not the 16 record supports Plaintiff meeting or equaling Listing 12.05C. 17 C. Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 18 19 opinion expressed by state agency medical consultants and Plaintiff’s treating 20 physician as to Plaintiff’s physical limitations. ECF No. 15 at 11-16. 21 Considering the case is being remanded for the above stated reasons, the 22 ALJ will reweigh the medical opinions in the file for both claimant’s physical and 23 psychological limitations. 24 D. 25 Step Five Plaintiff argues the ALJ failed to meet her step five burden by posing an 26 incomplete and vague hypothetical to the vocational expert. ECF No. 15 at 16-19. 27 She argues that the difference between the two hypotheticals given to the 28 vocational expert were requiring “supportive and fairly frequent supervision,” ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 which resulted in Plaintiff being unemployable and requiring “fairly close 2 supervision,” which resulted in Plaintiff being employable. ECF No. 15 at 18. 3 An ALJ is only required to present the vocational expert with those 4 limitations the ALJ finds to be credible and supported by the evidence. Osenbrock 5 v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001). 6 A review of the hearing transcript revels that in the first hypothetical, the 7 ALJ presented a full residual functional capacity determination, including the 8 statement from the state agency psychologist that “the claimant’s capable of 9 simple, routine task, with fairly close supervision. So in other words, a setting 10 [sic.] there would be, there would monitoring of the performance of the task and all 11 that statement might entail.” Tr. 94. This hypothetical resulted in jobs. Tr. 95-96. 12 In the second hypothetical, the ALJ added the following limitation to the first 13 hypothetical: the claimant “would require supervisory contact that is supportive 14 and fairly frequent. Fairly frequent was designed as him needing to be shown what 15 to do in a hands on, visual manner. The supportive supervisor would need to keep 16 him on track and minimize the social demands that he would have.” Tr. 96. This 17 additional limitation resulted in no jobs being available in the national economy as 18 it tipped the claimant into a sheltered work environment. Tr. 97. 19 While Plaintiff argues the difference between the two hypotheticals is vague, 20 it was sufficient enough for the vocational expert to make the determination that 21 one was sheltered work and the other was not. The Ninth Circuit, has held that an 22 ALJ’s reliance on testimony the vocational expert gives in response to a 23 hypothetical is proper. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 24 “An ALJ may take administrative notice of any reliable job information, including 25 information provided by a [vocational expert].” Id. (citing Johnson v. Shalala, 60 26 F.3d 1428, 1435 (9th Cir. 1995)). As such, the hypotheticals as presented were not 27 in error. However, because this case is being remanded and lay witness testimony 28 is to be considered and medical opinions are to be reweighed, the ALJ is instructed ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 to call a vocational expert at subsequent proceedings and present new hypotheticals 2 based on a new residual functional capacity determination. 3 REMEDY 4 The decision whether to remand for further proceedings or reverse and 5 award benefits is within the discretion of the district court. McAllister v. Sullivan, 6 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 7 where “no useful purpose would be served by further administrative proceedings, 8 or where the record has been thoroughly developed,” Varney v. Secretary of Health 9 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 10 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 11 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 12 (noting that a district court may abuse its discretion not to remand for benefits 13 when all of these conditions are met). This policy is based on the “need to 14 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 15 outstanding issues that must be resolved before a determination can be made, and it 16 is not clear from the record that the ALJ would be required to find a claimant 17 disabled if all the evidence were properly evaluated, remand is appropriate. See 18 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 19 F.3d 1172, 1179-80 (9th Cir. 2000). 20 In this case, it is not clear from the record that the ALJ would be required to 21 find Plaintiff disabled if all the evidence were properly evaluated. Further 22 proceedings are necessary for the ALJ consider lay witness testimony in the file, 23 properly address Listing 12.05C, reweigh the medical opinions, and seek testimony 24 from a psychological expert and a vocational expert. CONCLUSION 25 26 Accordingly, IT IS ORDERED: 27 1. 28 Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 2. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is 2 GRANTED, and the matter is REMANDED to the Commissioner for additional 3 proceedings consistent with this Order. 4 3. Application for attorney fees may be filed by separate motion. 5 The District Court Executive is directed to file this Order and provide a copy 6 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 7 and the file shall be CLOSED. 8 DATED March 6, 2017. 9 10 11 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 12

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.