Luis Zavala vs. Carolyn W. Colvin, No. 2:2015cv03408 - Document 26 (C.D. Cal. 2016)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Karen L. Stevenson (sbu)
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Luis Zavala vs. Carolyn W. Colvin Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 ) NO. CV 15-3408-KS ) Plaintiff, ) v. ) MEMORANDUM OPINION AND ORDER ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) Defendant. ) _________________________________ ) LUIS ZAVALA, 17 18 INTRODUCTION 19 20 Plaintiff filed a Complaint on May 6, 2015, seeking review of the denial of his 21 applications for a period of disability, disability insurance benefits (“DIB”), and 22 supplemental security income (“SSI”). On March 10, 2016, the parties filed a Joint 23 Stipulation (“Joint Stip.”) in which plaintiff seeks an order reversing the Commissioner’s 24 decision and ordering the payment of benefits or, in the alternative, remanding for further 25 proceedings. (Joint Stip. at 13.) The Commissioner requests that the ALJ’s decision be 26 affirmed or, in the alternative, remanded for further proceedings. (See id. at 17.) On August 27 16, 2016, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 28 1 Dockets.Justia.com 1 undersigned United States Magistrate Judge. (Dkt. Nos. 16, 24, 25.) The Court has taken 2 the matter under submission without oral argument. 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 6 On November 1, 2011, plaintiff, who was born on November 20, 1973, protectively 7 filed applications for DIB and SSI.1 (See Administrative Record (“AR”) 16, 159, 185.) 8 Plaintiff alleged disability commencing December 1, 2008 due to: depression; high blood 9 pressure; and a left knee problem. (Id. 185.) Plaintiff previously worked as a tow-truck 10 driver (DOT 919.663-026) (AR 46, 186); security guard (DOT 372.667-034) (id. 46); and 11 auto repossessor (DOT 241.367-022) (id.). 12 applications initially (id. 108-113), plaintiff requested a hearing (id. 114). Administrative 13 Law Judge Ariel L. Solotengo (“ALJ”) held hearings on November 21, 2012 and September 14 24, 2013. 15 September 24, 2013 hearing).) Plaintiff, who was represented by counsel, testified at both 16 hearings. (See AR 35-46, 56-81, 87-89.) In addition, Elizabeth Brown-Ramos testified as a 17 vocational expert at the November 21, 2012 hearing (id. 81-87) and David Rinehart testified 18 as a vocational expert at the September 24, 2103 hearing (id. 46-51). On November 12, 19 2013, the ALJ issued an unfavorable decision, denying plaintiff’s applications for DIB and 20 SSI. (Id. 13-27.) On March 16, 2015, the Appeals Council, after receiving additional 21 evidence that it made part of the record, denied plaintiff’s request for review. (Id. 1-6.) 22 \\ 23 \\ 24 \\ 25 \\ After the Commissioner denied plaintiff’s (Id. 53-90 (transcript of November 21, 2012 hearing), 32-52 (transcript of 26 27 1 28 Plaintiff was 35 years old on the alleged onset date and thus met the agency’s definition of a younger person. See 20 C.F.R. § 404.1563(c), 416.963(c). 2 SUMMARY OF ADMINISTRATIVE DECISION 1 2 3 The ALJ found that Plaintiff met the insured status requirements of the Social Security 4 Act through December 31, 2013 and, although plaintiff had earned some money in 2010, had 5 not engaged in substantial gainful activity since the alleged onset date of December 1, 2008. 6 (AR 7 impairments: “asthma; mild lumbar degenerative disease; mild osteoarthritis of the left knee; 8 and depression.” (Id.) The ALJ also noted that plaintiff suffered from hypertension, but the 9 ALJ found that this impairment was not severe. (Id. 19.) The ALJ concluded that plaintiff 10 did not have an impairment or combination of impairments that met or medically equaled the 11 severity of any impairments listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 12 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). (Id. 23.) 13 determined that plaintiff had the residual functional capacity (“RFC”) to perform light work 14 as follows: 18.) The ALJ further found that plaintiff had the following severe The ALJ 15 16 [Plaintiff] can lift/carry 20 pounds occasionally and 10 pounds frequently. He 17 can stand/walk 4 hours in an 8-hour workday, and sit 4 hours in an 8-hour 18 workday, with a sit/stand option. [Plaintiff] can engage in occasional postural 19 activities. [Plaintiff] is to avoid concentrated exposure to dust, fumes, gases, 20 and other lung irritants. [Plaintiff] is limited to simple, repetitive work that does 21 not require understanding/following complex or detailed instructions, or work 22 that requires concentration for prolonged periods. 23 24 (Id. 20) The ALJ found that plaintiff was unable to perform his past relevant work as a 25 guard, auto repossessor, or tow-truck driver but was capable of performing jobs that exist in 26 significant numbers in the national economy, including the representative occupations of 27 shoe packer (DOT 920.687-166) and assembly, small parts (DOT 706.684-022). (Id. 26-27). 28 3 1 Accordingly, the ALJ determined that plaintiff had not been under a disability, as defined in 2 the Social Security Act, from the alleged onset through the date of the ALJ’s decision. (Id. 3 27.) 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 8 determine whether it is free from legal error and supported by substantial evidence in the 9 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence 10 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of 12 Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the 13 evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s 14 findings if they are supported by inferences reasonably drawn from the record.” Molina v. 15 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 16 17 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 18 nonetheless must review the record as a whole, “weighing both the evidence that supports 19 and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v. 20 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); 21 Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ 22 is responsible for determining credibility, resolving conflicts in medical testimony, and for 23 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 24 25 The Court will uphold the Commissioner’s decision when the evidence is susceptible 26 to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 27 2005). However, the Court may review only the reasons stated by the ALJ in his decision 28 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 4 1 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not 2 reverse the Commissioner’s decision if it is based on harmless error, which exists if the error 3 is “‘inconsequential to the ultimate nondisability determination,’ or if despite the legal error, 4 ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487, 5 492 (9th Cir. 2015) (internal citations omitted). 6 DISCUSSION 7 8 9 Plaintiff alleges the following error: the ALJ erred at step 3 of the sequential analysis 10 in finding that plaintiff’s mental impairment did not meet or equal a listed impairment, 11 namely Listing 12.05C. (Joint Stip. at 4-10.) 12 I. 13 Standard. 14 15 At step three of the sequential evaluation process, the ALJ must determine whether 16 the claimant has an impairment or combination of impairments that meets or equals an 17 impairment listed in the Appendix to federal regulations.2 18 416.920(d). Conditions set forth in the Listing of Impairments (“Listings”) are considered so 19 severe that “they are irrebuttably presumed disabling, without any specific finding as to the 20 claimant’s ability to perform his past relevant work or any other jobs.” Lester v. Chater, 81 21 F.3d 821, 828 (9th Cir. 1995); see also 20 C.F.R. §§ 404.1525, 416.925-416.926. 20 C.F.R. §§ 404.1520(d), 22 23 The claimant bears the burden of establishing a prima facie case of disability under 24 the Listings. See Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). To meet or equal 25 Listing 12.05C for intellectual disability, plaintiff must show all of the following: 26 27 28 2 The Appendix can be found at 20 C.F.R., Pt 404, Subpt. P, App. 1. 5 1 (1) he suffers “significantly subaverage general intellectual functioning with deficits 2 in adaptive functioning [that] initially manifested during the developmental 3 period; i.e., the evidence demonstrates or supports onset of the impairments 4 before age 22”; 5 (2) he has “a valid verbal, performance, or full scale IQ of 60 through 70”; and 6 (3) he has “a physical or other mental impairment imposing an additional and significant work-related limitation of function.” 7 8 9 20 C.F.R. Part 404, Subpt. P, App. 1 § 12.05. 10 11 “[A]n impairment imposes a significant work-related limitation of function when its 12 effect on a claimant’s ability to perform basic work activities is more than slight or 13 minimal.” Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir. 1987). This requirement is met 14 when plaintiff has an additional impairment that is “severe” under 20 C.F.R. §§ 404.1520(c), 15 416.920(c) – that is, when plaintiff has an additional impairment that the ALJ found was 16 “severe” at step 2 of the sequential analysis. 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 17 12.00(A). 18 19 II. The ALJ’s Decision. 20 21 The ALJ did not refer to Listing 12.05C in his decision or explain his rationale for 22 finding that plaintiff’s mental impairment did not satisfy its requirements. (See generally 23 AR 19-20.) Instead, the ALJ limited his discussion at step 3 to “the Listing[s] pertaining to 24 the Musculoskeletal System and the Respiratory System” and Listing 12.04 (affective 25 disorders). (Id. 19.) The ALJ explained that he had determined that plaintiff’s impairments 26 did not meet or equal the criteria of Listing 12.04 because, inter alia, plaintiff’s mental 27 impairment “does not cause at least two ‘marked’ limitations or one ‘marked’ limitation and 28 ‘repeated’ episodes of decompensation, each of extended duration.” (Id.) 6 III. 1 The ALJ Failed To Support His Finding That Plaintiff Does Not Satisfy Listing 12.05C. 2 3 4 It appears from the Joint Stipulation that the parties agree that plaintiff satisfied two of 5 criteria for Listing 12.05C – that is, they agree that plaintiff has: (1) a valid full scale IQ 6 score of 70 (AR 431 (reported by the consulting clinical psychologist, Ahmad R. Riahinejad, 7 Ed. S., Ph.D., on April 10, 2013)); and (2) another “impairment imposing an additional and 8 significant work-related limitation of function,” namely asthma, mild lumbar degenerative 9 disease, and mild osteoarthritis of the left knee (AR 18). (Joint Stip. at 10-12); see also 20 10 C.F.R. Part 404, Subpt. P, App. 1 § 12.05. Accordingly, the sole issue in dispute is whether 11 the ALJ should have found that plaintiff also satisfies the first criterion (significantly 12 subaverage general intellectual functioning that initially manifested before age 22). 13 14 However, the ALJ never mentioned Listing 12.05C in his decision. (See generally AR 15 19-20.) Instead, he limited his discussion at step 3 to “the Listing[s] pertaining to the 16 Musculoskeletal System and the Respiratory System” and Listing 12.04 (affective 17 disorders). (Id.) Accordingly, despite plaintiff’s apparent satisfaction of two of the criteria 18 for Listing 12.05C (IQ score and other additional, significant work-related limitation) and 19 his presentation of some evidence concerning the third criterion (significantly subaverage 20 intellectual functioning that initially manifested before age 22),3 the ALJ made no findings 21 about whether plaintiff satisfied any Listing 12.05C criteria. 22 3 23 24 25 26 27 28 Plaintiff’s school records show that plaintiff was recommended for testing for a learning disability when he was in the fifth grade, but his parents refused to allow testing and instead requested that he repeat the fifth grade. (AR 343.) Plaintiff similarly testified that he was held back in the fifth grade because his reading and writing were below grade level. (Id. 78.) He testified that repeating fifth grade did not help him progress as a student. (Id.) Plaintiff’s sixth grade teacher also reported that, despite plaintiff repeating fifth grade, he performed “below grade level in most areas” and demonstrated an “inability to read,” “low attention span,” and inability to follow directions. (Id. 343.) Plaintiff’s grades in the subsequent school years suggest that he struggled in the core academic subjects. (Id. 341.) Plaintiff testified that he is unable to determine whether he receives the right change after a cash purchase. (AR 78.) In his March 21, 2012 adult function report, plaintiff wrote that he cannot go out of the house alone because “[he] always get[s] lost.” (Id. 204.) He added that he is “very forgetful,” “can’t keep track of things,” is unable to handle a savings account, and is “slow comprehending things.” (Id.) On April 10, 2013, consulting clinical psychologist Ahmad R. Riahinejad, Ed. S., Ph.D., observed that plaintiff “could not recite the alphabet correctly” and diagnosed plaintiff with, 7 1 Given the ALJ’s silence, the parties can only intuit the ALJ’s rationale for concluding 2 at step 3 that plaintiff’s mental impairment does not meet or equal Listing 12.05C. 3 However, the Court is not similarly free to posit post hoc rationalizations for the ALJ’s 4 determination. See Orn, 495 F.3d at 630 (“We review only the reasons provided by the ALJ 5 in the disability determination and may not affirm the ALJ on a ground upon which he did 6 not rely.”); Bray v. Astrue, 554 F.3d 1219, 1225-26 (9th Cir. 2009) (“Long-standing 7 principles of administrative law require us to review the ALJ’s decision based on the 8 reasoning and factual findings offered by the ALJ – not post hoc rationalizations that attempt 9 to intuit what the adjudicator may have been thinking.”); Connett, 340 F.3d at 874 (“[W]e 10 cannot rely on independent findings of the district court. We are constrained to review the 11 reasons the ALJ asserts.”). Because the Court cannot ascertain, much less review, the basis 12 for the ALJ’s conclusion that plaintiff does not satisfy the Listing 12.05C criteria, the matter 13 must be remanded for further consideration unless the ALJ’s error is harmless. See Barbato 14 v. Comm’r of Soc. Sec. Admin., 923 F.Supp. 1273, 1276 n. 2 (C.D. Cal. 1996) (remand is 15 appropriate when a decision does not adequately explain how a decision was reached 16 because “the Commissioner’s decision must stand or fall with the reasons set forth in the 17 ALJ’s decision, as adopted by the Appeals Council”). 18 19 IV. The ALJ’s Error At Step 3 Of The Sequential Analysis Is Not Harmless. 20 21 An ALJ’s error is harmless only if it is inconsequential to the ALJ’s ultimate 22 nondisability determination or if, despite any legal error, “the agency’s path may reasonably 23 be discerned.” Brown-Hunter, 806 F.3d at 492. These conditions are not satisfied here. 24 25 26 27 28 inter alia, borderline intellectual functioning. (Id. 432.) However, Dr. Riahinejad stated that plaintiff is capable of managing funds on his own behalf and could understand, remember, and carry out simple and repetitive instructions. (Id. 433.) 8 1 First, plaintiff’s full scale IQ score of 70 is relevant – although not dispositive – 2 evidence of his IQ prior to age 22. Cf. Strickland v. Colvin, No. EDCV 14-0283-MAN, 3 2015 WL 1728354, at *5 (C.D. Cal. Apr. 15, 2015) (valid IQ tests are widely treated as 4 establishing a rebuttable presumption of a fairly constant IQ throughout a claimant’s life); 5 Thorsborne v. Colvin, No. CV 14-08352-AS, 2015 WL 6758121, at *3-4 (C.D. Cal. Nov. 5, 6 2015) (adopting rebuttable presumption that a claimant’s IQ is fairly constant throughout a 7 claimant’s life); Ramirez v. Colvin, No. CV 13-5473 JC, 2014 WL 360183, *6 (C.D. Cal. 8 Jan. 31, 2014) (same); Schuler v. Astrue, No. 09-2126-PLA, 2010 WL 1443892, at *6 (C.D. 9 Cal. Apr.7, 2010) (same); see also Hodges v. Barnhart, 276 F.3d 1265, 1268 (11th Cir. 10 2001) (same); Muncy, 247 F.3d at 734 (same); Luckey v. U.S. Dep’t of Health & Hum. 11 Servs., 890 F.2d 666, 668 (4th Cir. 1989) (same); Guzman v. Bowen, 801 F.2d 273, 275 (7th 12 Cir. 1986) (same); but see Frear v. Astrue, No. CV 12-4532-JPR, 2013 WL 454902, at *5 13 n.6 (C.D. Cal. Feb. 6, 2013) (“Some circuits, although not the Ninth, have held that an IQ 14 score of 70 or below at any age creates a rebuttable presumption that the person had deficits 15 in adaptive functioning before age 22. The Court is not persuaded by those cases for the 16 reasons expressed in Rhein v. Astrue, No. 1:09–cv–01754–JLT, 2010 WL 4877796, at *7 17 (E.D. Cal. Nov. 23, 2010), and for the additional reason that this presumption would 18 seemingly apply in every case where Listing 12.05C was at issue.”) (internal citations 19 omitted). 20 21 Second, plaintiff’s academic records, which show that he repeated fifth grade, was 22 recommended for testing for a learning disability, and performed below grade level, support 23 the view that plaintiff manifested subaverage intellectual functioning before age 22. See 24 supra footnote 3. Third and finally, the record shows that plaintiff dropped out of high 25 school after 10th grade and has no G.E.D. or high school diploma (AR 47), facts which may 26 be indicative of a lack of motivation – or an undiagnosed intellectual disability. In light of 27 the foregoing and the other evidence indicating that plaintiff exhibits subaverage intellectual 28 functioning, including his purported inability to recite the alphabet (AR 432), the ALJ’s 9 1 apparent failure to consider whether plaintiff satisfied the criteria for Listing 12.05C was not 2 harmless. 3 4 Accordingly, the matter must be remanded for further consideration. On remand, the 5 ALJ shall: consider plaintiff’s full scale IQ score, his academic records, and any other 6 relevant evidence; and articulate specific reasons supported by substantial evidence for 7 finding that plaintiff has, or has not, satisfied the criteria for Listing 12.05C. Finally, the 8 ALJ may wish to solicit additional evidence, such as the statements of one of plaintiff’s 9 parents or siblings, psychological examinations, and/or the opinion of a medical expert, to 10 fully develop the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) 11 (“ALJ in a social security case has an independent duty to fully and fairly develop the record 12 and to assure that the claimant’s interests are considered.” (internal quotation marks and 13 citations omitted)). 14 \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 10 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the 4 Commissioner is REVERSED, and this case is REMANDED for further proceedings 5 consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 8 Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for 9 defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATE: August 24, 2016 14 15 ___________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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