Hall v. Commissioner Social Security Administration
Filing
22
Opinion and Order signed on 9/4/2014 by Judge Ancer L. Haggerty. The decision of the Acting Commissioner denying Edward Hall's application for SSI must be REVERSED AND REMANDED for immediate award of benefits. (sp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
EDWARD HALL,
Plaintiff,
Case No. 3:13-cv-01547-HA
OPINION AL"ID ORDER
v.
CAROLYNW. COLVIN,
Acting Commissioner of Social Security,
Defendant.
HAGGERTY, District Judge:
Plaintiff Edward Hall seeks judicial review of a final decision by the Acting
Commissioner of the Social Security Administration denying his application for Supplemental
Security Income (SSI) benefits. This court has jurisdiction to review the Acting Commissioner's
decision under 42 U.S.C. § 405(g). After reviewing the record, this court concludes that the
Acting Commissioner's decision must be REVERSED and REMANDED for an award of
benefits.
OPINION AND ORDER - 1
STANDARDS
To establish eligibility for benefits, a plaintiff has the burden of proving an inability to
engage in any substantial gainful activity (SGA) "by reason of any medically determinable
physical or mental impairment" that has lasted or can be expected to last for a continuous period
of not less than twelve months. 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential evaluation process for
determining if a person is eligible for benefits. 20 C.F.R. §§ 404.1520, 416.920.
First, the Commissioner determines whether the claimant is engaged in SGA. If the
claimant is so engaged, disability benefits are denied.
If not, the Commissioner proceeds to the second step and determines whether the
claimant has a medical impairment that meets the regulatory definition of "severe." 20 C.F.R. §
404.1520(a). If the claimant lacks this kind of impairment, disability benefits are denied. 20
C.F.R. § 404.1520(c). Ifat least some of the claimant's impairments are severe, the
Commissioner proceeds to the third step to dete1mine whether the impahment or impahments are
equivalent to one or more impairments that the Commissioner has recognized to be so severe that
they are presumed to preclude SGA. See 20 C.F.R. § 404.1520(d). These are listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (Listing oflmpairments or the Listings). The Listings describe
impairments which qualify as severe enough to be construed as per se disabling. 20 C.F.R. §§
404.1525,416.925; Tackettv.Apfe/, 180F.3d 1094, 1099(9thCir.1999).
The claimant has the burden of producing medical evidence that establishes all of the
requisite medical findings for a listed impahment. Burch v. Barnhart, 400 F.3d 676, 683 (9th
Cir. 2005); Bowen v. Yuckert, 482 U.S. 137, 146 (1987). If the claimant's condition meets or
OPINION AND ORDER- 2
equals one in the Listing ofimpairments, the claimant is presumed conclusively to be disabled.
If the impairment is not one that is presumed to be disabling, the Commissioner
determines the claimant's residual functional capacity (RFC), which is the most an individual can
do in a work setting despite the total limiting effects of all his or her impaiiments. 20 C.F.R. §§
404.1545(a)(l), 416.945(a)(l), and Social Security Ruling 96-8p.
The Commissioner then proceeds to the fourth step to determine whether the impairment
prevents the claimant from engaging in work that the claimant has pe1'formed in the past. If the
claimant is able to perform his or her former work, a finding of "not disabled" is made and
disability benefits are denied. See 20 C.F.R. § 404.1520(e).
If the claimant is unable to perform work that he or she has performed in the past, the
Commissioner proceeds to the fifth and final step and determines if the claimant can perform
other work in the national economy in light of his or her RFC, age, education, and work
expenence.
In this five-step framework used by the Commissioner, the claimant has the burden of
proof at steps one through four. Accordingly, the claimant bears the initial burden of establishing
his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show there are a
significant number of jobs in the national economy that the claimant can perform given his or her
RFC, age, education, and work experience. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996).
If the Commissioner cannot meet this burden, the claimant is considered disabled for
purposes of awarding benefits under the Act. 20 C.F.R. § 404.1520(f)(l). If the Commissioner
meets this burden, the claimant is deemed not disabled for purposes of determining benefits
OPINION AND ORDER- 3
eligibility. 20 C.F.R. §§ 404.1566, 404.1520(g).
The Commissioner's decision must be affirmed if it is based on the proper legal standards
and its findings are suppo1ied by substantial evidence in the record as a whole. 42 U.S.C. §
405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Andrews v. Shala/a, 53 F.3d 1035,
1039 (9th Cir. 1995). Substantial evidence is more than a scintilla but less than a preponderance;
it is "such relevant evidence as a reasonable mind might accept as adequate to suppo1i a
conclusion." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
supports or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The
Commissioner, not the reviewing court, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence supports either
outcome. Reddickv. Chafer, 157 F.3d 715, 720-21 (9th Cir. 1998). If, however, the
Commissioner did not apply the proper legal standards in weighing the evidence and making the
decision, the decision must be set aside. Id at 720.
DISCUSSION
In this matter, the government concedes that the Administrative Law Judge (ALJ) erred in
evaluating whether plaintiff meets the criteria for Listing 12.05C. The pmiies agree that this case
should be reversed and remanded and agree that this comi has discretion to decide whether the
remand should be for an immediate award of benefits or for fmiher proceedings. 42 U.S.C. §
405(g) (sentence four); Harman v. Apfel, 211F.3d1172, 1177 (9th Cir. 2000). Plaintiff contends
that this matter should be remanded for benefits while the government requests that it be
remanded for fmiher proceedings.
OPINION AND ORDER- 4
The ALJ found that plaintiffs impairments did not meet or equal Listing l 2.05C,
however, the ALJ failed to adequately explain his reasoning and failed to consider lay witness
statements. Listing 12.05 addresses intellectual disability and pertains to "significantly
subaverage general intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence demonstrates or supports onset of
the impairment before age 22." 20 C.F.R. Part 404, Subpart P, Appendix 1, §12.05. Part C
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."
The ALJ acknowledged that plaintiff has deficits in intellectual and adaptive functioning
but concluded that his impairments did not meet Listing l 2.05C because plaintiff did "not have a
valid verbal, perfo1mance, or full scale IQ of 60 through 70 and a physical or other mental
impairment." Tr. 28. 1 The ALJ noted that plaintiff was assessed by Elaine Greif, Ph.D, in 2002
and that she concluded that plaintiff had a verbal IQ of 70, a performance IQ of 65, and a full
scale IQ of 65. Doctor Grief concluded that the scores were valid and that plaintiff had fully
cooperated with the testing protocol. At the time, Dr. Greif was aware that plaintiff used alcohol
and marijuana on a regular basis. The only reasons provided by the ALJ for rejecting Dr. Greifs
testing was that the tests may have been influenced by plaintiffs use of drugs and alcohol and
because Dr. Greif did not perfo1m formal literacy testing.
The parties appear to agree that the literacy testing was unnecessary for purposes of
Listing 12.05C. The parties also agree that if plaintiffs use of drugs and alcohol had indeed
affected plaintiffs IQ testing, the proper remedy was for the ALJ to find that plaintiff was
1
"Tr." refers to the Trans"cript of the Administrative Record.
OPINION AND ORDER- 5
disabled and then to conduct a drug and alcohol analysis to determine whether substance use was
material to the finding of disability. 20 C.F.R. § 416.935. The record as a whole clearly
demonstrates that plaintiff meets all criteria under Listing 12.0SC in the event that the IQ scores
were valid scores and not materially affected by plaintiffs use of alcohol and marijuana. The
only question presented is whether to remand the matter for renewed testing or for a drug and
alcohol analysis on the basis that plaintiffs initial IQ scores "may have been affected" by his use
of drugs and alcohol.
In light of the fact that Dr. Greif was fully aware of plaintiffs drug and alcohol use at the
time of the testing, that it does not appear that plaintiff was under the influence of drugs or
alcohol at the time of testing, and that Dr. Greif concluded the testing was valid, there is no
purpose in remanding for further proceedings. The record is adequately developed and
demonstrates that plaintiff meets all criteria for Listing 12.0SC. Accordingly, this matter is
remanded for an immediate award of benefits.
CONCLUSION
For the reasons provided, this comi concludes that the decision of the Acting
Commissioner denying Edward Hall's application for SSI must be REVERSED AND
REMANDED for an immediate award of benefits.
IT IS SO ORDERED.
DATED this
_!J._ day of September, 2014.
~Ltrr.ikiJ;
United States District Judge
OPINION AND ORDER- 6
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