Smullin v. Astrue

Filing 23

MEMORANDUM DECISION AND ORDER granting 1 Petition for Review. This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. This Remand shall be considered a sentence four remand,consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852,854 (9th Cir. 2002). Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

AMANDA SMULLIN,
Petitioner,

Case No. 1:12-cv-00414-CWD

v.

MEMORANDUM DECISION
AND ORDER

CAROLYN W. COLVIN1,
Acting Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court for its consideration is Petitioner Amanda
Smullin’s (“Petitioner”) Petition for Review (Dkt. 1) of the Respondent’s denial of social
security benefits, filed August 9, 2012. The Court has reviewed the Petition for Review
and the Answer, the parties’ memoranda, and the administrative record (“AR”), and for
the reasons that follow, will remand to Commissioner for further proceedings consistent
with this opinion.

1

Carolyn W. Colvin is substituted for Michael J. Astrue. Colvin became the Acting
Commissioner of Social Security Administration on February 14, 2013.
MEMORANDUM DECISION AND ORDER - 1

PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on October 1, 2009, claiming disability beginning May 31, 2009. This
application was denied initially and on reconsideration, and a hearing was held on March
24, 2011, before Administrative Law Judge (“ALJ”) John T. Molleur. After hearing
testimony from Petitioner and a vocational expert, ALJ Molleur issued a decision finding
Petitioner not disabled on May 10, 2011. Petitioner timely requested review by the
Appeals Council, which denied her request for review on June 7, 2012.
Petitioner appealed this final decision to the Court. (Dkt. 1.) The Court has
jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was 27 years of age. Petitioner attended
special education classes through the 12th grade and earned a certificate of completion.
Her prior work experience includes jobs as a cashier and order taker in the fast food
industry. As found by the ALJ, none of Petitioner’s past work amounted to substantial
gainful activity.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantial gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since her alleged onset
MEMORANDUM DECISION AND ORDER - 2

date of May 31, 2009. At step two, it must be determined whether the claimant suffers
from a severe impairment. The ALJ found Petitioner’s Attention Deficit Hyperactivity
Disorder (“ADHD”), borderline intellectual functioning, and dysthymic disorder severe
within the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found that Petitioner’s impairments did not meet or equal the
criteria for any listed impairments, specifically listings 12.02 (organic mental disorders),
12.04 (affective disorders), and 12.05 (intellectual disability). If a claimant’s impairments
do not meet or equal a listing, the Commissioner must assess the claimant’s residual
functional capacity (“RFC”) and determine, at step four, whether the claimant has
demonstrated an inability to perform past relevant work. The ALJ determined Petitioner’s
RFC limited her to following one- or two-step instructions, working in low stress
environments, and performing tasks that require no mathematical calculations or detailed
reading.
The ALJ found Petitioner had no past relevant work. If a claimant has no past
relevant work, the burden shifts to the Commissioner to demonstrate, at step five, that the
claimant retains the capacity to make an adjustment to other work that exists in
significant levels in the national economy, after considering the claimant’s RFC, age,
education and work experience. At this step, the ALJ found Petitioner could successfully
adjust to occupations such as fruit sorter, housekeeper, or laundry folder, and is therefore
not disabled.
MEMORANDUM DECISION AND ORDER - 3

STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because
of the inability “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971).
An individual will be determined to be disabled only if her physical or mental
impairments are of such severity that she not only cannot do her previous work but is
unable, considering her age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a
preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
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The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the Commissioner, the decision
must be upheld even when the evidence can reasonably support either affirming or
reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
Cir. 1999).
DISPOSITION
In this appeal, Petitioner raises two issues. First, Petitioner contends the ALJ erred
at step three by failing to properly evaluate whether her impairments medically equaled
Listing 12.05C. Second, Petitioner argues the ALJ also erred in deriving her RFC without
properly evaluating certain opinion evidence in the record. Because the Court finds the
ALJ erred at step three, it is not necessary to reach this second issue, and the matter will
be remanded for further analysis of medical equivalence.
1.

Medical Equivalence to Listing 12.05C
If a claimant meets or equals a listed impairment and satisfies the twelve month

duration requirement, the claimant is presumed disabled regardless of age, education and
work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A claimant bears the burden of
MEMORANDUM DECISION AND ORDER - 5

producing medical evidence to establish all of the requisite medical findings that her
impairments meet or equal any particular listing. Bowen v. Yuckert, 482 U.S 137, 146, n.
5 (1987). If the claimant alleges equivalence to a listing, the claimant must proffer a
theory, plausible or otherwise, as to how her combined impairments equal a listing. See
Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). An impairment, or combination of
impairments, is medically equivalent to a listing “if it is at least equal in severity and
duration to the criteria of any listed impairment,” considering “all evidence in [the] case
record about [the] impairment(s) and its effects on [the claimant] that is relevant….” 20
C.F.R. § 404.1526(a), (c). Further, equivalence depends on medical evidence only; age,
education, and work experience are irrelevant. Id. at § 404.1526(c). Finally and critically,
“the claimant’s illnesses ‘must be considered in combination and must not be
fragmentized in evaluating their effects.’” Lester v. Chater, 81 F.3d 821, 829 (9th Cir.
1995) (quoting Beecher v. Heckler, 756 F.2d 693, 694-95 (9th Cir. 1985)).
Here, the ALJ found that Petitioner’s impairments neither met nor equaled any
listing. Specifically, the ALJ found that Petitioner’s impairments did not meet or equal
Listings 12.02 (organic mental disorders), 12.04 (affective disorders), and 12.05
(intellectual disability). Petitioner argues the ALJ was required, but failed, to properly
evaluate whether the combination of her impairments medically equaled Listing 12.05C.
Had he done so, Petitioner maintains, the ALJ would have been directed to find Petitioner
disabled.
Listing 12.05 provides a two-prong test for determining whether a claimant suffers
MEMORANDUM DECISION AND ORDER - 6

from Intellectual Disability. First, there must be evidence of “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. If the evidence
shows onset before age 22, the second prong can be satisfied in four distinct ways
described in subparagraphs A through D. Id. Petitioner contends she medically equals
subparagraph C, which requires “[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.” Id. at ¶ 12.05(C).
The parties do not dispute that: (1) Petitioner’s impairments began before age 22;
(2) Petitioner’s ADHD, dysthymic disorder, and borderline intellectual functioning are all
severe impairments that limit her ability to perform basic work activities; (3) a 1995 test
indicated a full scale IQ of 75; and (4) a 2009 test indicated a full scale IQ of 71. See (AR
18-20.) Because of her IQ scores, however, it is clear that Petitioner does not meet Listing
12.05C. Thus, the issue is whether ALJ Molleur erred by concluding “[n]o treating or
examining physician has mentioned 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.” (AR 20.)
“A boilerplate finding is insufficient to support a conclusion that a claimant’s
impairment does not” equal a listing. Lewis, 236 F.3d at 512 (citing Marcia v. Sullivan,
900 F.2d 172, 176 (9th Cir. 1990)). In concluding that Petitioner did not medically equal
any listing, the ALJ did not address evidence that showed Petitioner’s impairment began
MEMORANDUM DECISION AND ORDER - 7

before age 22. In her testimony before the ALJ, Petitioner stated that she had been
involved in special education programs throughout school. (AR 46.) This testimony is
supported by school records incorporated into the administrative record. (AR 240-261.)
The school records, all of which were prepared before Petitioner reached age 22,
note she performed below grade level, suffered from ADHD, and faced “significant
deficits with social skills and daily living skills.” (AR 248-56.) This type of evidence is
generally sufficient to satisfy the first prong of the 12.05C analysis. See, e.g., Gomez v.
Astrue, 695 F. Supp. 2d 1049, 1060-1061 (C.D. Cal 2010) (deficits in adaptive
functioning before age 22 shown where claimant attended special education classes,
tested below grade level, and had difficulty relating to peers); Walberg v. Astrue,
No.C08-0956, 2009 WL 1763295, at *9 (W.D. Wash. June 18, 2009) (same); Maresh v.
Barnhart, 438 F.3d 897, 900 (8th Cir. 2006) (same). Thus, there is substantial evidence in
the record to show onset before age 22, which the ALJ did not address in his findings on
Listing 12.05.
Additionally, Petitioner alleges the ALJ failed to adequately consider evidence
demonstrating equivalence with the second prong of Listing 12.05C. Emphasizing her
most recent full scale IQ score of 71, Petitioner contends that the ALJ should have
followed the Social Security Administration’s Program Operations Manual System
(“POMS”), which states in relevant part:
Listing 12.05C is based on a combination of an IQ score with an additional
and significant mental or physical impairment. The criteria for this
paragraph are such that a medical equivalence determination would very
MEMORANDUM DECISION AND ORDER - 8

rarely be required. However, slightly higher IQ's (e.g., 70-75) in the
presence of other physical or mental disorders that impose additional and
significant work-related limitation of function may support an equivalence
determination. It should be noted that generally the higher the IQ, the less
likely medical equivalence in combination with another physical or mental
impairment(s) can be found.
POMS § DI 24515.056(D)(1)(c) (emphasis added).2 This excerpt raises the question of
whether, given Petitioner’s borderline IQ score, the ALJ should have provided more
support for his equivalence determination.
As an initial matter, the Court recognizes “POMS constitutes an agency
interpretation that does not impose judicially enforceable duties on either this court or the
ALJ.” Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010).
Rather, POMS and the interpretations in it “are ‘entitled to respect,’ but ‘only to the
extent that those interpretations have the power to persuade.’” Id. (quoting Christensen v.
Harris Cnty., 529 U.S. 576, 587 (2000) (internal quotations omitted)). The persuasive
force of the guidance provided in POMS depends on “the thoroughness evident in its
consideration, the validity of its reasoning, [and] its consistency with earlier and later
pronouncements,” among other factors. Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944). One additional factor is the extent to which an interpretation in POMS relates to a
regulation that imposes a mandatory obligation or merely requires “consideration” of
certain evidence. Lockwood, 616 F.3d at 1072-73.3
2

Available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424515056.
In Lockwood, the United States Court of Appeals for the Ninth Circuit held that an ALJ
did not err by failing to explain her reasons for classifying a claimant—who was less than two
months shy of her 55th birthday—as a “person closely approaching advanced age” despite
3

MEMORANDUM DECISION AND ORDER - 9

In this case, the equivalence determination is not a discretionary consideration.
Because the ALJ found Petitioner did not meet any listed impairment, the ALJ was
obligated to make an equivalence determination. 20 C.F.R. § 404.1529(d)(3) (“If your
impairment is not the same as a listed impairment, we must determine whether your
impairment(s) is medically equivalent to a listed impairment.”) (emphasis added).
Moreover, the section of POMS addressing 12.05C equivalence has remained unchanged
since at least 2008. See Didway v. Astrue, 303 Fed.Appx 553, 554 (9th Cir. 2008)
(discussing applicability of POMS § DI 24515.056(D)(1)(c)).4 In Didway, the United
States Court of Appeals for the Ninth Circuit found no error where the ALJ “provided a
comprehensive six-page evaluation” in support of the conclusion that a woman with an
IQ of 75 did not medically equal Listing 12.05C. Id; see also Gonzales v. Sullivan, 914
F.2d 1197, 1201 (9th Cir. 1990) (upholding as adequate the ALJ’s four-page evaluation
of evidence).
In contrast, ALJ Molleur provided less than two pages of analysis to support his
conclusions on three separate listings. (AR 20.) Most of this analysis is devoted to finding
Petitioner does not meet Listings 12.02, 12.04, and 12.05. Only one conclusory sentence
squarely addresses equivalence. There, the ALJ stated: “No treating or examining
language in POMS requiring a detailed analysis in any “borderline age situation.” 616 F.3d at
1072-73. There, the court found POMS unpersuasive, noting that the Administration had recently
added the explanation requirement, the requirement conflicted with other agency guidance, and
the regulation at issue only promised the ALJ would “consider” using a higher age category. Id.
4
The Didway decision “is not precedent except as provided by 9th Cir. R. 36-3.” 303
Fed. Appx. at 553 n.**. Although Didway is not binding on this Court, the Court finds its
reasoning persuasive, particularly because it addresses a legal and factual situation very similar
to that presented in this case.
MEMORANDUM DECISION AND ORDER - 10

physician has mentioned 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 of the Listing of Impairments.” (Id.) Under the
circumstances of this case, more analysis is necessary.
The Court also finds POMS persuasive in this case for the following reasons.
Here, POMS reflects a relatively consistent interpretation of the regulations and
elaborates on the Listing analysis, a mandatory part of the five-step sequential evaluation
process. The guidance is also persuasive because it shows the Administration is aware
that intellectual disabilities sometimes defy ready categorization. Accordingly, in rare
cases where an otherwise impaired claimant falls just outside 12.05C’s bright-line IQ
range, POMS instructs that an equivalence determination may be appropriate. In
response, the Commissioner asserts the ALJ’s boilerplate conclusion was adequate
because POMS says such a determination would “very rarely be required.” (Respt.’s Br.
8-9, Dkt. 21.) But rarely does not mean never.
Although not every case requires an extensive discussion of equivalence, some do.
It is true that the ALJ is not required, “as a matter of law, to state why a claimant failed to
satisfy every different section of the listing of impairments.” Gonzalez, 914 F.2d at 1201
(citing Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)); see also Didway, 303
Fed. Appx. at 554 (“[T]he ALJ is not required to perform a detailed analysis for every
possible listing or equivalent.”). But here, the ALJ acknowledged Petitioner’s theory that
her impairments combine to make her distractible, unable to concentrate, and easily
MEMORANDUM DECISION AND ORDER - 11

angered, all of which have detracted from her ability to remain employed. (AR 21.) And,
unlike the claimant in Didway, Petitioner is one single IQ point away from fully meeting
Listing 12.05C. This fact—the uncontroverted result of an examination by Dr. Starr, the
State’s examining psychiatrist5—alone should have prompted at least a brief analysis of
12.05C equivalence.
A more robust equivalence analysis is also warranted by the ALJ’s finding that
Petitioner suffered from three “severe” mental impairments, specifically dysthymic
disorder, borderline intellectual functioning, and ADHD. (AR 18.) These findings are
significant because, in addition to a full scale IQ between 60 and 70, Listing 12.05C
requires “a physical or other mental impairment imposing an additional and significant
work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, ¶ 12.05(C).
There is substantial medical evidence in the record suggesting that these three
conditions combined to impair Petitioner to such an extent that she cannot consistently
perform even unskilled work. For instance, Petitioner’s treating physician, Dr. Grant
Belnap, opined that she has serious limitations in memory, concentration, and ability to
learn new tasks. (AR 296-98, 332-335.) The notes of Dr. Starr, the State’s psychiatrist,
evidence similar, albeit less extreme, work-related limitations. (AR at 268-271.)
Likewise, ALJ Molleur specifically found “these impairments… cause significant
limitations in the claimant’s ability to perform basic work activities.” (AR 18.) In other
words, the only reason Petitioner did not meet Listing 12.05C was because her most
5

Notably, the ALJ accorded “significant weight” to Dr. Starr’s opinion. (AR 25.)

MEMORANDUM DECISION AND ORDER - 12

recent IQ score was one point above the regulatory threshold.
Despite this slimmest of margins, the ALJ does not explain his conclusion that
Petitioner’s “mental impairments, considered singly and combination, do not meet or
medically equal the criteria of listings 12.02, 12.04, and 12.05.” (AR at 19-20.) With
regard to Listing 12.05C, something more than a recitation of the regulatory standard and
cursory references to medical findings are necessary to support this conclusion.
Therefore, the Court finds ALJ Molleur committed legal error by not supporting his
equivalence determination with substantial evidence and will remand for additional
analysis of 12.05C equivalence.
2.

Evaluation of Opinion Evidence
Because an adequately supported equivalence analysis must come at step three—

that is, before the ALJ would weigh the evidence and determine Petitioner’s RFC—the
Court does not reach the second issue raised in the Petition for Review.
CONCLUSION
The record contains substantial evidence that Petitioner meets all but one of the
criteria for Listing 12.05C. Although the ALJ correctly found Petitioner did not meet the
listing because her IQ score was outside regulatory range, his finding that Petitioner did
not medically equal the listing was conclusory and not supported by substantial evidence.
There was substantial evidence to show onset of Petitioner’s claimed intellectual
disability before age 22, mental impairments imposing additional and significant workrelated limitations of function, and a recent full scale IQ score just one point outside the
MEMORANDUM DECISION AND ORDER - 13

listing range. Moreover, the Administration’s own guidance manual specifically indicates
that an equivalence finding may be warranted in such circumstances. And the record
contains evidence advancing Petitioner’s theory that her ADHD, dysthymic disorder, and
borderline intellectual functioning, in combination, impair her concentration to an extent
that precludes her from engaging in substantial gainful activity—indeed, the ALJ
specifically found she had never engaged in such activity. Yet the ALJ abruptly
concluded there was no evidence to support a finding that Petitioner’s combined
impairments equaled Listing 12.05C. These circumstances warrant remand for a more
detailed equivalence determination.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Plaintiff’s Petition for Review (Dkt. 1) is GRANTED.

2)

This action shall be REMANDED to the Commissioner for further

proceedings consistent with this opinion.
3)

This Remand shall be considered a “sentence four remand,”

consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852,
854 (9th Cir. 2002).
September 26, 2013

MEMORANDUM DECISION AND ORDER - 14