Mathews v. Commissioner of Social Security

Filing 21

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/21/2016 GRANTING 15 Motion for Summary Judgment; DENYING 19 Cross-Motion for Summary Judgment; REMANDING this matter for further consideration consistent with this order. CASE CLOSED. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EUGENE CURTIS MATHEWS,

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Plaintiff,

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No. 2:14-cv-1947-EFB

v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying his application for Supplemental Security Income (“SSI”) under Title

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XVI of the Social Security Act. The parties’ cross-motions for summary judgment are pending.

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For the reasons discussed below, plaintiff’s motion is granted, the Commissioner is denied, and

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the matter is remanded for further proceedings.

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I.

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BACKGROUND
Plaintiff filed an application for SSI, alleging that he had been disabled since January 1,

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2004. Administrative Record (“AR”) 153-161. His application was denied initially and upon

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reconsideration. Id. at 88-92, 94-98. On September 10, 2012, a hearing was held before

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administrative law judge (“ALJ”) Peter Belli. Id. at 42-69. Plaintiff was represented by counsel

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at the hearing, at which he and a vocational expert (“VE”) testified. Id.
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On October 19, 2012, the ALJ issued his decision finding that plaintiff was not disabled under
section 1614(a)(3)(A) of the act.1 Id. at 20-35. The ALJ made the following specific findings:
1. The claimant has not engaged in substantial gainful activity since December 30, 2010, the
application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: Psychotic disorder, nos, borderline
intellectual functioning and substance abuse. (20 CFR 416.920(c)).

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***
3. The claimant impairments, including the substance use disorder, meet section 12.02,
12.03, 12.04 and 12.09 of 20 CFR Part 404, Subpart P, Appendix 1(20 CFR 416.920(d)).

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***
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Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid
to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions,
disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to
“a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) &
1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The
following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
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4. If the claimant stopped the substance use, the remaining limitations would cause more
than a minimal impact on the claimant’s ability to perform basic work activities; therefore,
the claimant would continue to have a severe impairment or combination of impairments.
***

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5. If the claimant stopped the substance use, the claimant would not have an impairment or
combination of impairments that meets or medically equals any of the impairments listed
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d)).
***
6. If the claimant stopped the substance use, the claimant would have the residual functional
capacity to perform a full range of work at all exertional levels but with the following
nonexertional limitations: receive, remember and understand simple instructions,
occasionally receive and carry out detailed instructions. Unable to perform complex jobs
and he is limited to frequent exposure and interaction with the general public. He is able
to make simple workplace judgments and adjustments to normal workplace. Able to
frequently interact with supervisors and coworkers.

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***
7. The claimant has no past relevant work (20 CFR 416.965).
8. The claimant was born on March 23, 1966 and was 43 years old, which is defined as a
younger individual age 18-49, on the date the application was filed (20 CFR 416.963).

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9. The claimant has at least a high school education and is able to communicate in English
(20 CFR 416.964).
10. Transferability of job skills is not an issue because the claimant does not have past
relevant work (20 CFR 416.968).
11. If the claimant stopped the substance use, considering the claimant’s age, education, work
experience, and residual functional capacity, there would be a significant number of jobs
in the national economy that the claimant could perform (20 CFR 416.960(c) and
416.996)
***
12. The claimant has not been under a disability, as defined in the Social Security Act, since
November 9, 2010, the date the application was filed (20 CFR 416.920(g)).
Id. at 22-35.

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Plaintiff’s request for Appeals Council review of the ALJ’s decision was denied on April
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7, 2014, leaving the ALJ’s decision as the final decision of the Commissioner. Id. at 6-12.
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II.

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LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

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of fact are supported by substantial evidence in the record and the proper legal standards were

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applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

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Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

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180 F.3d 1094, 1097 (9th Cir. 1999).

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The findings of the Commissioner as to any fact, if supported by substantial evidence, are

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conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

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more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

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Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a

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conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

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N.L.R.B., 305 U.S. 197, 229 (1938)).

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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

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2001) (citations omitted). “Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

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Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

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III.

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ANALYSIS
Plaintiff argues that the ALJ erred by failing to consider whether his impairments satisfied

Listing 12.05(C). ECF No. 16 at 4-10.
At step three of the sequential evaluation process, the ALJ determines whether a

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claimant’s impairment or combination of impairments meet or equals one of the impairments

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listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Where a claimant’s impairment or

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impairments meets or equals a listed impairment in Appendix 1, the claimant is per se disabled.

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20 C.F.R. § 416.920(d). “Once a per se disability is established, the ALJ has no discretion; he

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must award benefits.” Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990).

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Listing 12.05—intellectual disability—“refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during the
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developmental period; i.e., the evidence demonstrates or supports onset of the impairment before

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age 22.” The listing can be met by demonstrating “[a] valid, verbal, performance, or full scale IQ

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of 60 through 70 and a physical or other mental impairment imposing an additional and

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significant work-related limitation of function.” Listing 12.05(C). Thus, plaintiff meets the

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listing if (1) he has a valid IQ score between 60 and 70, (2) the evidence demonstrates or supports

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onset of the impairment before age 22, and (3) he has a physical or other mental impairment

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imposing an additional and significant work-related limitation of function.

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The Commissioner does not dispute that plaintiff has at least one additional impairment

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that imposes a significant work-related function. ECF No. 19 at 10-15. Thus, the court need only

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decide whether plaintiff satisfies the first two requirements of the listing; that is, whether he has a

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valid IQ score between 60 and 70, and whether the evidence demonstrates or supports onset of the

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impairments before age 22.

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On June 7, 2011, plaintiff was evaluated by psychologist Dr. Janice Nakagawa, Ph.D. AR

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329-333. On the Wechsler Adult Intelligence Scale, Fourth Edition test (WAIS-IV), plaintiff

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obtained a full scale IQ score of 67. The Commissioner urges the court to disregard this score,

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arguing that results from this IQ test are questionable because of plaintiff’s poor work history and

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good adaptive functioning. ECF No. 19 at 14. This does not appear to be a legitimate reason to

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simply disregard the evidence. Nor is it clear from the record or otherwise explained how

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evidence of plaintiff’s poor work history undermines the validity of the IQ test. More

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importantly, the ALJ did not find that plaintiff’s poor work history or adaptive functioning

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rendered the IQ score invalid. See Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th

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Cir. 2009) (“Long-standing principles of administrative law require [the court] to review the

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ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post hoc

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rationalizations that attempt to intuit what the adjudicator may have been thinking.”). Rather, in

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discussing Dr. Nakagawa’s examination of plaintiff, the ALJ commented that the record shows

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that plaintiff put forth adequate effort in all testing, and that the results were considered reliable.

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AR 24. Thus, the ALJ did not question the validity of plaintiff’s IQ score.

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/////
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The Commissioner also argues that it was not error to find that plaintiff did not satisfy

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Listing 12.05(C) because the record does not support a finding that plaintiff had significant

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subaverage intelligence before age 22. ECF No. 19 at 10. Again, it is not clear from the ALJ’s

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decision whether he believed that plaintiff’s limited intellectual functioning existed prior to age

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22. Although the ALJ found that plaintiff had borderline intellectual function and an IQ of 67

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(AR 22, 24, 32), the ALJ’s decision failed to even reference Listing 12.05(C). Thus, the court

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cannot discern the basis for the ALJ’s finding regarding Listing 12.05(C) and remand for

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clarification is warranted. See Thresher v. Astrue, 283 F. App’x 473, 475 (9th Cir. 2008) (finding

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that “the ALJ’s failure to reference § 12.05 and, in particular, Listing 12.05(C) makes it unclear

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whether the ALJ came to grips with the specific requirements of that section,” and remanding the

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matter for “clarification regarding the nature of the considerations applied at step 3 and,

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particularly, precisely what was decided and why.”).

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Furthermore, a claimant is not required to produce an IQ score ascertained prior to the age

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of 22 in order to meet the listing. See Gomez v. Astrue, 695 F. Supp. 2d 1049, 1061 (C.D. Cal.

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2010). Several circuits have held that an adult IQ score creates a rebuttable presumption that the

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impairment existed before the age of 22. See Hodges v. Barnhart, 276 F.3d 1265, 1268–69 (11th

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Cir. 2001) (IQ tests after age 22 satisfy the listing criteria and “create a rebuttable presumption of

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a fairly constant IQ throughout life”) (citing Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001),

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Luckey v. U.S. Dept. Of Health and Human Services, 890 F.2d 666, 668 (4th Cir. 1989)). District

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courts within the Ninth Circuit are split. Compare, e.g., Forsythe v. Astrue, 2012 WL 217751, at

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* 6-7 (E.D. Cal. Jan. 24, 2012) (collecting cases and adopting presumption); Jackson v. Astrue,

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2008 WL 5210668, at * 6 (C.D. Cal. Dec.11, 2008) (“several circuits have held that valid IQ tests

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create a rebuttable presumption of a fairly constant IQ throughout a claimant’s life . . . . The

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Court finds the reasoning of the Seventh, Eighth, and Eleventh Circuits to be persuasive”);

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Schuler v. Astrue, 2010 WL 1443882, at *6 (C.D. Cal. Apr. 7, 2010) (“a valid qualifying IQ score

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obtained by the claimant after age 22 creates a rebuttable presumption that the claimant’s mental

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retardation began prior to the age of 22, as it is presumed that IQ scores remain relatively constant

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during a person’s lifetime”); with Clark v. Astrue, 2012 WL 423635 (E.D. Cal. Feb.8, 2012)
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(declining to adopt rebuttable presumption); Rhein v. Astrue, 2010 WL 4877796, at *8 (E.D. Cal.

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Nov. 23, 2010) (finding rebuttable presumption would remove plaintiff’s burden at step three).

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This court concurs with the reasoning in Forsythe and adheres to the line of cases

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applying the rebuttable presumption. See Wooten v. Colvin, No. 2:12-cv-426 EFB, 2013 WL

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5372855, at *3-4 (E.D. Cal. Sep. 25, 2013); Woods v. Astrue, No. CIV. S-10-2031-GEB-EFB,

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2012 WL 761720, at *4 (E.D. Cal. Mar. 7, 2012). As the ALJ did not even reference Listing

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12.05, he clearly failed to rebut the presumption.

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Accordingly, the matter must be remanded to allow the ALJ to consider whether plaintiff
satisfies listing 12.05(C).
IV.

CONCLUSION

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for summary judgment is granted;

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2. The Commissioner’s cross-motion for summary judgment is denied;

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3. The matter is remanded for further consideration consistent with this order; and

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4. The Clerk is directed to enter judgment in plaintiff’s favor.

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DATED: March 21, 2016.

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