Fielder v. Commissioner Social Security Administration

Filing 19

OPINION AND ORDER. Signed on 04/13/2015 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KEVIN P. FIELDER
Plaintiff,

v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.
MERRILL SCHNEIDER
Schneider, Kerr & Gibney Law Offices
P.O. Box 14490
Portland, OR 97293
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204
SARAH L. MARTIN
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant

1 - OPINION AND ORDER

Case No. 3:14-cv-00523-MA
OPINION AND ORDER

MARSH, Judge
Plaintiff Kevin P. Fielder seeks judicial review of the final
decision

of

application

the
for

Commissioner
Supplemental

of

Social

Security

Security

Income

denying

(SSI)

his

disability

benefits under Title XVI of the Social Security Act, 42 U.S.C. §§
1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C.
405 (g).

For

the

reasons

that

follow,

this

court

reverses

§

the

decision of the Commissioner and remands this matter pursuant to
sentence

four

of

42

U.S. C.

§405 ( g)

for

further

administrative

proceedings.
FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff

protectively

filed

an

application

for

SSI

on

September 16, 2010, alleging disability beginning January 1, 2005,
due to learning difficulties and breathing problems.
Plaintiff's

claims

were

denied

initially

and

upon

reconsideration. Plaintiff filed a request for a hearing before an
administrative law judge (ALJ). An ALJ held a hearing on October 1,
2012, at which plaintiff appeared with his attorney and testified.
A vocational expert, Paul K. Morrison, also appeared at the hearing
and testified. On October 17, 2012, the ALJ issued an unfavorable
decision.

The

Appeals

Council

denied

plaintiff's

request

for

review, and therefore, the ALJ' s decision became the final decision
of the Commissioner for purposes of review.

2 - OPINION AND ORDER

Born in 1978, plaintiff was 34 years old on the date of the
ALJ' s

adverse decision.

Plaintiff has a

ninth grade education.

Plaintiff has past relevant work experience as a cannery worker and
fast food worker.
THE ALJ'S DISABILITY ANALYSIS

The

Conunissioner

has

established

a

five-step

sequential

process for determining whether a person is disabled.
Yuckert,

482. U.S. 137, 140 (1987); 20 C.F.R.

Bowen v.

416.920. Each step

§

is potentially dispositive. The claimant bears the burden of proof
at steps one through four.
Admin., 574 F.3d 685,

Valentine v.

Commissioner Soc.

689 (9th Cir. 2009);

Sec.

Tackett v. Apfel, 180

F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to
the Conunissioner to show that the claimant can do other work which
exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161
(9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since his application date, September
16,

2010.

following

At

step two,

severe

the

ALJ

impairments:

found

that

respiratory

plaintiff

disorder,

had

the

borderline

intellectual functioning, and history of drug and alcohol abuse. At
step

three,

the

combination of

ALJ

found

impairments,

listed impairment.

3 - OPINION AND ORDER

that

plaintiff's

impairments,

did not meet or medically equal

or
a

The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform less than a full range of medium work as defined
in 20 C.F.R. § 416.967(c) with several additional work limitations.
Plaintiff can lift and carry 50 pounds occasionally and 25 pounds
frequently; can stand and walk for six out of eight hours; can sit
for six out of eight hours; and should avoid concentrated exposure
to dust, odors, fumes, and other environmental irritants. Plaintiff
is also limited to performing simple routine tasks.
At step four, the ALJ found plaintiff is able to perform his
past

relevant

work

as

both

a

cannery

and

fast

food

worker.

Accordingly, the ALJ concluded that plaintiff has not been under a
disability under the Social Security Act from September 16, 2010,
through the date of the decision.
ISSUES ON REVIEW
On appeal

to

this

court,

plaintiff

contends

that

the ALJ

improperly found that his impairments did not meet or equal Listing
12.05C.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the

Commissioner

applied

the

proper

legal

standards

and

findings are supported by substantial evidence in the record.
U.S.C.

§

405(g);

Berry v. Astrue,

622 F.3d 1228,

1231

the
42

(9th Cir.

2010). "Substantial evidence is more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable

4 - OPINION AND ORDER

mind might accept as adequate to support a conclusion." Hill,

698

F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at
690. The court must weigh all the evidence whether it supports or
detracts from the Commissioner's decision. Martinez v. Heckler, 807
F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld,

even

if the

evidence

is

susceptible

to more

than

one

rational interpretation. Batson v. Commissioner Soc. Sec. Admin.,
359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the
court

may

not

substitute

its

judgment

Commissioner." Edlund v. Massanari,

for

that

of

the

253 F.3d 1152, 1156 (9th Cir.

2001).
DISCUSSION
I.

The ALJ Erred at Step Three in Evaluating Listing 12.0SC

The
generally

Social

Security Regulations'

describes

impairments

that

"Listing of
are

so

Impairments"

severe

as

to

be

considered presumptively disabling, without further consideration
of a claimant's residual functional capacity, past relevant work,
or other jobs.

20 C.F.R.

§

416.920(d). A diagnosis of a listed

impairment is not sufficient; the claimant must also satisfy the
findings

shown

in

the

listing

Sullivan,

911 F.2d 180, 184

of

(9th Cir.

that

impairment.

Young

v.

1990). A claimant has the

burden to establish that he or she meets or equals the criteria for

5 - OPINION AND ORDER

a listed impairment based on medical evidence. Burch v. Barnhart,
400 F.3d 676, 683 (9th Cir. 2005); Tackett, 180 F.3d at 1100.
Listing 12.05C provides in relevant part:
Intellectual
disability
refers
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.
The required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.

C.

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. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.05 (hereinafter Listing 12.05C).

If claimant's impairment "satisfies the diagnostic description
in the introductory paragraph of [Listing 12.05] and any one of the
four sets of criteria,

[the court] will find that [his] impairment

meets the listing." Kennedy v.
Cir.

2013).

Colvin,

738 F.3d 1172,

1176

(9th

Because the introductory paragraph of Listing 12.05

requires that the "evidence demonstrates or supports onset of the
impairment before age 22, the first prong appears intended to limit
coverage to an innate condition, rather than a condition resulting
from a disease or accident in adulthood." Gomez v.

As true,

695

F.Supp.2d 1049, 1061 (C.D. Cal. 2010) (citation and quotation marks
omitted) .

The

introductory paragraph also provides

6 - OPINION AND ORDER

that "[t] he

required level of severity for

[Listing 12. 05]

is met when the

requirements in A, B, C, or Dare satisfied." 20 C.F.R. Pt. 404,
Subpt.

P,

App.

1,

§

12. 05.

Thus,

for

purposes

of plaintiff's

alleged disability, plaintiff must satisfy ( 1) deficits in adaptive
functioning prior to age 22;

(2) a valid verbal, performance, or

full scale IQ score of 60 through 70; and (3) a physical or other
mental

impairment

causing

an

additional

and

significant

work-

related limitation. Kennedy, 738 F.3d at 1176.
As an initial matter,

the parties do not appear to dispute

that plaintiff meets prongs two and three in Part C of Listing
12. 05C.

As

the

Commissioner

concedes

in her

brief,

the

ALJ' s

reasons for discounting plaintiff's verbal Intelligence Quotient
(IQ)

score were erroneous,

score

of

69

and

and plaintiff has a valid verbal IQ

another

impairment

imposing

an

additional

significant work-related limitation of functioning. Def. Br. (#17),
pp.

3,

severe

5. The ALJ determined at Step Two that plaintiff had the
impairment

of

a

respiratory

disorder.

Nothing

more

is

required to satisfy Part C of 12.05. See e.g., Stavrakis v. Colvin,
No.

6:12-cv-01929-SI,

2014) ("If

the

ALJ

2014 WL 1584494,

finds

that

a

at

claimant

*6

(D.

has

Or.

Apr.

another

21,

severe

impairment at step two of the sequential analysis, then [Part CJ is
satisfied.").
Consequently, the Commissioner requests this court to remand
for

further

proceedings

7 - OPINION AND ORDER

for

two

outstanding

issues:

( 1)

to

determine if plaintiff meets prong one of Listing 12.05 (deficits
in

adaptive

functioning

prior

to

age

22);

and

(2)

whether

plaintiff's drug and alcohol abuse are material to the finding of
disability. Plaintiff disagrees and argues that record as a whole
supports remand for immediate calculation and award of benefits.
Given the ambiguity in the record,

as discussed below,

further

proceedings are required.
A.

Deficits in Adaptive Functioning Prior to Age 22

In the decision, the ALJ found that plaintiff's impairments do
not meet or equal the criteria of Listing 12.05C. Tr. 22. However,
the ALJ only discussed prongs two and three in Part C of Listing
12.05. Tr. 23. In rejecting the validity of plaintiff's verbal IQ
score, the ALJ cited to plaintiff's "many years as a laborer and
fast

food

worker,"

and

that

plaintiff

"only made

fairly

good

effort" on testing. Tr. 23. The ALJ provided no finding on whether
plaintiff satisfies prong one,

deficits in adaptive functioning

prior

in

to

age

22

set

forth

the

introductory

paragraph.

Regardless, this Court retains the jurisdiction to review the ALJ's
overall finding that plaintiff does not meet Listing 12.0SC for
substantial evidence.
Plaintiff

argues

that

the

record

provides

circumstantial

evidence supporting a finding of deficits in adaptive functioning
prior to age 22. Plaintiff's argument is partially correct.

8 - OPINION AND ORDER

A showing of early onset for the purposes of Listing 12.05C
does not require clinical or IQ tests. Lewis v. Astrue, No. C 066608-SI,

2008 WL 191415,

*7

(N.D.

Cal.

Jan.

22,

2008).

Evidence

that demonstrates deficits in adaptive functioning before age 22
may be circumstantial.
difficulties

with

Relevant' circumstantial evidence includes

reading

and

writing,

attendance

of

special

education classes, and dropping out of school. Pedro v. Astrue, 849
F.Supp.2d 1006,

1011-12

(D.

Or.

2011);

Campbell

v.

Astrue,

No.

1:09-cv-00465GSA, 2011 WL 444783, *17 (D. Or. Feb. 8, 2011); Gomez,
695 F.Supp.2d at 1058-59; Payne v. Astrue, No. CV-08-1754-PHX-LOA,
2010 WL 654319, *11 (D. Ariz. Feb. 23, 2010).
As

plaintiff

circumstantial

correctly

evidence

noted,

consistent

the

with

record

adaptive

provides

functioning

deficits prior to age 22. 1 At the hearing, plaintiff testified that
he attended special education classes,

repeated the second grade

twice, and dropped out of school after completing the ninth grade.
Tr. 40. Plaintiff also testified that he attempted to get his GED
and attended classes for three days before giving up because the
material was too difficult to understand.

Id.

Plaintiff further

testified that he does not have a driver's license and attempted to
1

The Court recognizes that evidence in the record
suggestive of deficits in adaptive functioning prior to age 22
stems largely from plaintiff's own testimony, which the ALJ
discounted. Neither party directly challenges the ALJ's negative
credibility assessment. Nevertheless, after careful review of the
record, I conclude that the ALJ's negative credibility assessment
is not supported by substantial evidence.
9 - OPINION AND ORDER

study for the driving test, but could not understand the driver's
education manual. Tr. 55, 56.
Furthermore, contrary to the Commissioner's argument, evidence
of plaintiff's unskilled work history is not inconsistent with a
finding

of

deficits

in

adaptive

functioning

prior

to

age

22.

Evidence of some work history and possessing average.living skills
does

not

indicate

that

a

claimant

adaptive functioning.

See Pedro,

activities

reading,

such

as

does

not

have

deficits

849 F.Supp.2d at 1014
driving,

and

cleaning

in

("[D)aily
are

not

necessarily inconsistent with [meeting Listing 12.05C)"); see also
Gomez,

695

F. Supp. 2d

at

1057

(noting

that

Listing

12. 05C

is

structured differently than other mental disorder listings and that
a

claimant

can

satisfy

Listing

12.05A-C

"without

having

to

demonstrate a disabling, or even severe, level of mental functional
impairment") .
Here, plaintiff's work history is unskilled and limited, which
may be consistent with deficits in adaptive functioning prior to
age 22. In a work history form, plaintiff indicated that he worked
as a fast food worker but hi's tasks included sweeping and taking
out the garbage;

he noted that he could not work with customers

because he would get confused and frustrated. Tr. 209. Plaintiff
also described a
conveyor

belt.

job in a

Tr.

210.

seafood cannery packing fish from a
Plaintiff

reported

to

a

consultative

examiner that he attempted work as a stocker at Kmart but was fired

10 - OPINION AND ORDER

after one month. Tr. 240. At the hearing, plaintiff testified that
he worked for several years as a furniture loader but the work was
infrequent.

Tr.

60-61.

Additionally,

the vocational expert

(VE)

testified at the hearing that plaintiff's past relevant work is
unskilled.

2

Tr.

66.

Overall,

plaintiff's

total

earnings

never

surpassed $3,500 in a single year. Tr. 167. Accordingly, the record
provides some circumstantial evidence to suggest the presence of an
intellectual disability prior to age 22,

and the ALJ failed to

address this evidence in the context of his Step Three finding.
Thus,

the

ALJ' s

overall

finding

that

plaintiff

does

not

meet

Listing 12.05C is unsupported by substantial evidence.
Although several circuit and district courts have held that a
valid adult IQ score can be reflective of an impairment manifested
during the claimant's developmental phase,

such a presumption is

applied only in the absence of evidence of an injury or disease
affecting a claimant's IQ during adulthood. 3 See, e.g., Brooks v.
Astrue, No. 3:11-cv-01252-SI, 2012 WL 4739533, n. 3 (D. Or. Oct. 3,
2

In the decision, the ALJ readily admits that, although he
found plaintiff had past relevant work, "it is unclear if the
claimant performed these jobs at substantial gainful activity
levels." Tr. 28. The very definition of "past relevant work" is
work performed in the past fifteen years and that was substantial
gainful activity. 20 C.F.R. § 416.960(b) (1). However, because I
find that the ALJ erred at Step Three, it is unnecessary to
review the ALJ's Step Four error.
3

The Ninth Circuit has not addressed whether a valid adult
IQ score is entitled to a presumption that the impairment existed
during claimant's developmental phase. Glenn v. Colvin, No. 3:12cv-00886-AA, 2013 WL 3046871, *3 (D. Or. June 11, 2013).
·
11 - OPINION AND ORDER

2012) ("While Mr. Brooks has a history of motorcycle and automobile
accidents, there is no evidence in the record suggesting that he
suffered diminished intelligence as a result of those accidents.");
Pedro, 849 F.Supp.2d at n.2

("there is no evidence in the record to

suggest that plaintiff's mental impairment began sometime after she
reached age 22.
medical

Plaintiff denied any drug use,

evidence

in

the

record

to

nor is there any

suggest

a

decrease

intellectual c.apaci ty due to disease or accident.") ;
Barnhart, 276 F.3d 1265, 1268-69 (11th Cir.

presumption

of

a

fairly

Hodges

v.

2001) ("absent evidence

of sudden trauma that can cause retardation,
rebuttable

in

IQ tests create a

constant

IQ

throughout

life") (citations omitted). See also Clark v. Astrue, No. CIV S-102863 GGH, 2012 WL 423635,
Astrue,

No.

Cir.

(E.D. Cal. Feb. 8, 2012); Taylor v.

1:09-cv-01219-SKO,

Sept. 12, 2011);
(8th

*5

2011 WL 4055243,

see also Maresh v.

2006);

Muncy

Cir. 2001) (rebut table

v.

Barnhart,

Apfel,

presumption

247

unless

*13

(E.D.

438 F.3d 897,

F.3d

728,

change

in

734

Cal.
900
(8th

intellectual

functioning) .
In this case, there is evidence in the record of head trauma,
which may have altered plaintiff's intellectual functioning after
age

22,

contrary to

plaintiff's

argument.

In a

March

1;

2007

consultative examination, Kathleen S. Mayers, Ph.D., noted a verbal
IQ score of 69, a full scale IQ score of 77, and a performance IQ
score

of

90.

Tr.

243.

12 - OPINION AND ORDER

Dr.

Mayers

noted that

the

"significant

difference

between

capabilities

[plaintiff's]

verbal

and

performance

could indicate brain function problems or even

damage or more serious ongoing problems of the left hemisphere of
the

brain."

Dr.

Id.

Mayers

diagnosed

plaintiff

with

possible

cognitive disorder, cannabis abuse, amphetamine dependence, alcohol
abuse,

and

borderline

intellectual

functioning.

Tr.

244.

With

regard to the diagnosis of a cognitive disorder, Dr. Mayers opined
that this disorder may partially relate to plaintiff's substance
abuse,

history of head injuries and/or dysfunction of the brain.

Tr. 244. Indeed, plaintiff reported to Dr. Mayers that he had been
involved in several car and motorcycle accidents and suffered head
injuries. Tr. 239.
The record contains insufficient evidence of plaintiff's head
injuries.

Plaintiff did not indicate exactly when these injuries

occurred,

and the medical record is also silent with respect to

these accidents.

Because the introductory requirement of Listing

12.05 appears to "limit coverage to an innate condition" rather
than a decrease in intelligence due to adulthood injury, evidence
of plaintiff's traumatic brain injuries is relevant in evaluating
whether plaintiff's intellectual impairment manifested prior to age
22. Gomez, 695 F.Supp.2d at 1061.
Moreover,
whether

the

record

plaintiff's

intellectual

also

substance

functioning

13 - OPINION AND ORDER

is

after age

insufficiently
abuse
22.

affected
Dr.

Mayers

developed

on

plaintiff's
opined that

plaintiff's

cognitive

disorder

may

partially

relate

to

his

substance abuse but failed to elaborate, and the record documents
significant past drug abuse. For example, plaintiff reported to Dr.
Mayers that he used marijuana as early as 13 and methamphetamine as
early

as

age

nineteen.

Tr.

239.

Dr.

Mayers

also

noted

that

plaintiff reported drinking alcohol on the weekends. Id. A February
1,

2008

treatment

note

indicated

that

plaintiff

admitted

to

drinking one and a half cases of alcohol, presumably beer, a week.
Tr.

253. At the hearing,

plaintiff testified that he quit using

methamphetamine in 2008, but plaintiff continues to use marijuana
occasionally. Tr. 54.
In summary, because circumstantial evidence in the record may
support an inference of deficits in adaptive functioning prior to
age 22,

substantial evidence does not support the ALJ's overall

Step Three finding that plaintiff does not meet Listing 12.05C.
Nevertheless,

Dr.

Mayers' s examination and opinion suggest that

plaintiff's intellectual impairment may have manifested after age
22.

Because the

record as

a

whole

is ambiguous as

to whether

plaintiff's impairment manifested prior to age 22, thereby meeting
Listing 12.05C,

remand for further proceedings is necessary. The

ALJ "is in a better position than this court" to weigh the evidence
and make that determination. McAllister v. Sullivan, 888 F .. 2d 599,
603 (9th Cir. 1989).

14 - OPINION AND ORDER

II.

Credit as True

After finding the ALJ erred, this court has the discretion to
remand

for

further

proceedings

benefits.

Vasquez v.

Harman v.

Apfel,

Astrue,

or

for

immediate

572 F.3d 586,

211 F. 3d 1172,

1178

593

(9th Cir.

payment

(9th Cir.
2000).

of

2009);

The issue

turns on the utility of further proceedings: A remand for an award
of benefits is appropriate where there is no useful purpose to qe
served

by

further

proceedings

or

where

the

record

is

fully

developed. Vasquez, 572 F.3d at 593.
The

Ninth Circuit

has

established a

three-part

test

"for

determining when evidence should be credited and an immediate award
of benefits directed." Harman, 211 F.3d at 1178. The court should
grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are no
outstanding issues that must be resolved before a
determination of disability can be made, and (3) it is
clear from the record that the ALJ would be required to
find the claimant disabled were such evidence credited.
Id.
Where it is not clear that the ALJ would be required to award
benefits were the improperly rejected evidence credited, the court
has discretion whether to credit the evidence. Connett v. Barnhart,
340

F.3d 873,

876

(9th Cir.

2003)

The reviewing court should

decline to credit testimony when "outstanding issuesn remain. Luna
v.

Astrue,

623

F.3d

1032,

1035

(9th

Cir.

2010).

Moreover,

"[plaintiff] is not entitled to benefits under the statute unless
15 - OPINION AND ORDER

[he]

is,

in fact,

disabled,

no matter how egregious the ALJ's

errors may be." Strauss v. Commissioner of the Soc.

Sec.

Admin.,

635 F. 3d 1135, 1138 (9th Cir. 2011).
On this record,

I conclude that outstanding issues must be

resolved before a final determination of disability can be made.
The ALJ erred at Step Three in finding that plaintiff's verbal IQ
score of 69 was not valid. It appears that the ALJ did not fully
consider whether the evidence supports. a finding of deficits in
adaptive

functioning

prior to

age

22,

one

of the

criteria of

Listing 12.05C. As discussed above, it is not clear from the record
that plaintiff must be found disabled at Step Three. Therefore, it
is unclear whether plaintiff's impairment meets the criteria of
Listing 12.05C.
Additionally, the record is not fully developed. As discussed
previously, plaintiff reported to Dr. Mayers that he was in several
car and motorcycle accidents, which resulted in head injuries. It
is necessary to obtain medical records from these accidents,
available,

if

to determine if a head injury altered plaintiff's IQ

after age 22. Further clarification from Dr. Mayers regarding her
opinion of plaintiff's cognitive disorder and IQ testing would also
be

beneficial.

Moreover,

records may also

provide

evidence

clarity on

adaptive functioning prior to age 22.

16 - OPINION AND ORDER

of

plaintiff's

the

issue

educational

of deficits

in

Finally, plaintiff's significant substance abuse is also an
outstanding

issue.

As

the

Commissioner

correctly

contends,

if

plaintiff is found disabled, further proceedings are necessary to
determine if plaintiff's drug and alcohol abuse is material to the
finding of disability.' 42 U.S.C.

423(d) (2) (C), 1328c(a) (3) (J);

§§

Social Security Ruling 13-2p, available at 2013 WL 621536, at *2.
Dr.

Mayers

opined

that

affected his mental

plaintiff's

functioning.

Tr.

substance
244.

abuse

may

have

Another consultative

examiner opined that "with abstinence from drug use and appropriate
medication management, [plaintiff's] deficits may diminish somewhat
and allow him to be more employable in the future." Tr.
discussed

above,

plaintiff

still

occasionally

uses

2 99. As

marijuana.

Moreover, further clarification of the effect of plaintiff's past
substance abuse on his intellectual functioning is also necessary.
Accordingly,

the

proper

administrative proceedings.

remedy

Thus,

I

is

to

decline

remand

for

further

to order immediate

award of benefits because the record as a whole creates serious
4

As plaintiff correctly notes, the ALJ found that
plaintiff's substance abuse is not material to the determination
of disability because "medical records do not indicate that
claimant's occasional marijuana abuse causes any significant
functional limitations." However, as discussed above, two
examining physicians' opinions 'contradict this finding. Tr. 244,
299. Because the ALJ provided no rationale for rejecting the
examining physicians' opinions, I conclude that the ALJ's finding
that plaintiff's drug and alcohol abuse is not material to the
finding of disability is not supported by substantial evidence.
Consequently, plaintiff's argument fails.

17 - OPINION AND ORDER

doubt as to whether plaintiff is, in fact, disabled. Garrison v.
Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).

Based on the foregoing,

I exercise discretion under Connett

and concl·ude a remand for further proceedings is required to permit

the ALJ:
notes

(1) to further develop the record by obtaining treatment

for plaintiff's previous head injuries and his education

records;

(2) determine whether plaintiff had deficits in adaptive

functioning prior to age 22 and meets Listing 12.05C, consulting a
medical expert if necessary; and (3) further evaluate plaintiff's
credibility.
CONCLUSION

For
decision

the

reasons

denying

stated

benefits

to

above,

the

plaintiff

Commissioner's
is

REVERSED

final

and

this

proceeding is REMANDED pursuant to sentence four of 42 U.S.C.
§

405 (g)

for further administrative proceedings consistent with

this opinion.
IT IS SO ORDERED.
DATED this

!3

day of April, 2015.

Malcolm F. Mahh
United States District Judge

18 - OPINION AND ORDER