Conley v. Commissioner Social Security Administration

Filing 24

Opinion and Order: The Commissioner's decision is reversed. This matter is remanded for an award of benefits. Signed on 4/6/2017 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JENNIFER CONLEY,
Plaintiff,

Civ. No. 3:15-CV-02045
OPINION AND ORDER

V.

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

MCSHANE, Judge:
Plaintiff Jennifer Conley filed her application for disability insurance benefits and
supplemental security income benefits on September 28, 2011. Tr. 13 1 After a hearing, the
administrative law judge (ALJ) issued a written decision finding Conley not disabled. Tr. 13-26.
Conley brings this action for judicial review of the Commissioner's decision denying her
application for disability insurance benefits and supplemental security income benefits. This
Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the ALJ erred in
failing to conclude Conley met the step three listing for intellectual disability, the ALJ's decision
is REVERSED.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.

1

"Tr." refers to the Transcript of Social Security Administrative Record (#10) provided by the
Commissioner.
I-OPINION AND ORDER

42 U.S.C. § 405(g); Batson v. Comm 'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). "Substantial evidence is 'more than a mere scintilla but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."'
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chafer, 108 F.3d 978,

980 (9th Cir. 1997)). To determine whether substantial evidence exists, the court reviews the
administrative record as a whole, weighing both the evidence that supports and that which
detracts from the ALJ's decision. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).
DISCUSSION
The Social Security Administration utilizes a five step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920. The initial burden of proof
rests upon the claimant to meet the first four steps. If the claimant satisfies her burden with
respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable
of making an adjustment to other work after considering the claimant's residual functional
capacity (RFC), age, education, and work experience. Id.
At step three, the ALJ determined that Conley had severe impairments of a specific
learning disorder, bipolar disorder, chronic back pain, and obesity. Tr. 15. However, the ALJ
determined that these severe impairments did not meet one of the listed impairments in 20 C.F.R.
§ 404, subpt. P, app 1. Tr. 16. Specifically, the ALJ determined Conley did not meet the criteria
oflisting 12.05. Tr. 17-18.
Listing 12.05 sets the standard for establishing an intellectual disability. It states that
"[i]ntellectual disability refers to significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the developmental period; i.e., the

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evidence demonstrates or supports onset of the impairment before age 22." 20 C.F.R. 404
Subpart P, Appendix 1. In addition to establishing the first prong, a claimant must establish one
of four requirements establishing the severity level of the intellectual disability. See 12.05(A-D).
At issue here is 12.05C, 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."
The ALJ found that Conley did not meet listing 12.05C because Conley "does not have 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." Tr. 17. Further, the
ALJ noted that Conley has higher adaptive functioning than her IQ score suggests because she
has worked in the past, cares for her autistic daughter, and performs daily chores. Tr. 18. The
Commissioner agues that the ALJ' s conclusion was reasonable and supported by substantial
evidence. 2 I disagree.

A.

Valid IQ Score
An ALJ is free to reject a claimant's IQ score if it is invalid; however, the ALJ must

explicitly reject the IQ score and have substantial evidence for doing so. Stokes v. Astrue, 2011
U.S. Dist. LEXIS 7154 at *25 (D. Or. Jan. 4, 2011). The Ninth Circuit has not specifically
addressed what evidence an ALJ can rely on in rejecting an IQ score, but suggests that the ALJ
can rely on improper testing conditions or activities that suggest a higher score. Thresher v.
Astrue, 283 Fed. Appx. 473, 475 n.6 (9th Cir. 2008).

2

In briefing, the Commissioner did not explicitly discuss Conley's verbal IQ score of 70 or
whether Conley had a physical or mental impairment imposing an additional significant workrelated limitation. See Defs Reply, ECF No. 18. Rather, the Commissioner focused on the
introductory listing of 12.05. For purposes of clarity, this Court will address the requirements of
12.05C along with the 12.05 introductory listing.
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Here, the ALJ noted that Conley "has a verbal IQ score of 70, [but] her activities of daily
living suggest that her adaptive functioning is much higher than her IQ score suggests." Tr. 18.
The ALJ conflates the 12.05 introductory paragraph listing with the 12.05C IQ requirement,
which makes it unclear whether he is arguing that Conley does not have deficits in adaptive
functioning or that Conley's activities prove her IQ score invalid. This is not an explicit rejection
of the validity of Conley's IQ score. Stokes, 2011 U.S. Dist. LEXIS 7154 at *24 (stating that an
ALJ "improperly rejected [a claimant's] IQ scores because he never explicitly commented on
their validity."). This position is bolstered by the fact that the Commissioner failed to present any
arguments in briefing about the ALJ rejecting the validity of Conley's IQ score. In fact, the
Commissioner only presented an argument about adaptive functioning in relation to Conley's IQ
scores. Defs Reply 3-4, ECF No. 18. Since the ALJ failed to explicitly reject Conley's verbal
comprehension score of 70, she satisfies the first requirement of 12.05C.

B.

Physical or Mental Impairment Imposing an Additional and Significant Work-

Related Limitation
The ALJ found that Conley did not have a physical or mental impairment imposing an
additional and significant work-related limitation under 12.05C. Tr. 17. This finding is erroneous
as a matter oflaw. A finding of a severe impairment at step-two of an ALJ's sequential analysis
is a per se finding of a physical or mental impairment imposing an additional and significant
work-related limitation under 12.05C. McGrew v. Colvin, 2015 U.S. Dist. LEXIS 37372 at *11
(D. Or. March 25, 2015). The ALJ found at step two of his sequential analysis that Conley has
severe impairments of "specific learning disorder/other neurodevelopmental disorder, bipolar
disorder, chronic back pain, and obesity." Tr. 15. Because of these findings by the ALJ, Conley
meets the additional and significant work-related limitation requirement under 12.05C.

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C.

Deficits in Adaptive Functioning
The Commissioner argues, and the ALJ found, that Conley cannot meet the introductory

listing of 12.05. As noted, that section states that "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." 20 C.F.R. § 404 Subpart P, Appendix 1 (emphasis added). The
Commissioner further argues that the ALJ's conclusion that Conley has a higher level of
adaptive functioning than stated was reasonable and supported by substantial evidence. The
substantial evidence cited by the Commissioner is the opinions of examining physicians, Tom
Dooley and Luanne Ude. Dr. Ude and Dr. Dooley each stated that Conley has borderline
intellectual functioning and can work in positions that require simple tasks and no academic
training. Tr. 450, 653-654. Moreover, Dr. Dooley specifically stated that Conley would be a
good candidate for vocational rehabilitation because of her significant work history. Tr. 450.
Based on the previous opinions, the Commissioner argues that the ALJ' s conclusion that Conley
lacked deficits in adaptive functioning was supported by substantial evidence. However, the
Commissioner's arguments misconstrue the nature of Conley's educational and vocational
history. When viewed as a whole, the record compels the conclusion that Conley has
demonstrated significantly subaverage intellectual functioning with deficits in adaptive
functioning that manifested prior to age 22.
The introductory paragraph of 12.05 requires a claimant to demonstrate present deficits in
adaptive functioning that manifested prior to the age of 22. McGrew, 2015 U.S. Dist. LEXIS
37372 at *16; Adkins v. Colvin, 2016 U.S. Dist. LEXIS 140755 at *7 (D. Or. Jan. 26, 2016).
Adaptive functioning is described as:

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How effectively individuals cope with common life demands and how well they
meet the standards of personal independence expected of someone in their
particular age group, socioeconomic background, and community setting ....
Problems in adaptation are more likely to improve with remedial efforts than is
the cognitive IQ, which tends to remain a more stable attribute.

Pedro v. Astrue, 849 F. Supp.2d 1006, 1011 n.1 (D. Or. 2001). Deficits in adaptive functioning
can be shown through the use of circumstantial evidence. Id. at 1011-1012. Circumstantial
evidence can include "attendance in special education classes, dropping out of high school prior
to graduation, difficulties in reading, writing or math, and low skilled work history." Id. at 1012
(quoting Campbell v. Astrue, 2011 U.S. Dist. LEXIS 13742 at *17 (E.D. Cal. Feb. 8, 2011)). In
Pedro, the plaintiff was placed in special education classes, struggled to graduate high school,
struggled with reading and writing, and had an extensive history oflow skilled work. Id. at 1012.
The court found that the plaintiff met listing l2.05C. Id. at 1014. In finding that the plaintiff met
listing 12.05C, the Court emphasized that the ALJ's finding that plaintiff was not disabled
because she was able to care for her children, live independently, and handle her own hygiene
was erroneous. Id. Listing 12.05C does not require a finding that a plaintiff cannot perform basic
daily activities. Id. (citing Gomez v. Astrue, 695 F. Supp.2d 1049, 1057 (C.D. Cal. 2010)).
Here, similar to the plaintiff in Pedro, Conley presented all the relevant circumstantial
evidence that she suffered from deficits in adaptive functioning prior to the age of 22. At the
hearing, Conley noted that she did not receive a high school diploma, was enrolled in special
education classes, and had difficulty understanding school subjects. Tr. 41. These contentions by
Conley are substantiated by her high school transcript, which shows poor grades and attendance
at a secondary learning center starting during her sophomore year. Tr. 285. Moreover, the record
is replete with findings by physicians that Conley suffers from limited academic skills, including
a 4th grade reading level, 3rd grade spelling level, and a 5th grade math level. Tr. 450, 653-654.
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The ALJ stated that Conley's daily activities of being a single parent, performing household
chores, and having low skilled work history show that Conley does not suffer from deficits in
adaptive functioning. Tr. 18. However, as was noted in Pedro, a plaintiff can perform daily
activities and still meet listing 12.05C. As evidenced above, the record is clear that Conley
suffered from deficits in adaptive functioning that manifested prior to the age of 22, even
considering that she performs some daily activities.
Thus, the only issue remaining is whether the deficits in adaptive functioning that
manifested prior to the age of 22 are currently present. See McGrew, 2015 U.S. Dist. LEXIS
373 72 at * 16 (requiring a claimant to show that deficits in adaptive functioning prior to the age
of 22 are also currently present). The ALJ found that the deficits in adaptive functioning are not
present because Conley is able to "care for her autistic daughter as a single parent, work parttime, and perform other activities of daily living such as household chores." Tr. 17-18. I
disagree. Taken as a whole, the record amply demonstrates that Conley presently suffers from
deficits in adaptive functioning that manifested prior to the age of 22.
On April 23, 2012, Dr. Tom Dooley completed a psycho diagnostic exam report on
Conley. Dr. Dooley noted that Conley appeared "psychologically and socially unsophisticated"
and presented with a "below average or borderline IQ, with difficulty thinking in abstract terms
and questionable social judgment." Tr. 448, 450. In his summary, Dr. Dooley opined that Conley
struggled in school and was only able to earn a certificate from a secondary learning center. Tr.
450. Dr. Dooley further diagnosed Ms. Conley with bipolar disorder, learning disorder, and a
global assessment of functioning score of 57, which indicates Conley suffers moderate
impairments in social, occupational, and school functioning. Tr. 450.

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In February 2014, Dr. Anne Miner conducted a comprehensive psychological evaluation

on Conley. Tr. 742. Dr. Miner administered the WAIS-IV, and Conley received a verbal
comprehension score of 70. Tr. 744-745. The verbal comprehension score measures verbal
concept formation, verbal reasoning, and knowledge one is able to gain from her environment.
Tr. 745. Dr. Miner noted that "Ms. Conley's performance on this index reflects a significant
impairment in functioning as compared to that of other indices and others in her peer group." Tr.
745. Dr. Miner further noted that Conley appeared confused at times during the evaluation and
did not understand the nature of certain questions. Tr. 743. In her summary, Dr. Miner stated that
Conley has a long history of learning difficulties that will impact her functioning in school and
work settings. Tr. 747.
The ALJ afforded Dr. Miner's evaluation limited weight because Conley has been able to
sustain full-time work, currently works part-time at Marshalls, and engages in daily activities
that the ALJ felt contradicted Conley's impairment. Tr. 23. Disability claimants should not be
penalized for attempting to lead normal lives despite their limitations. Reddick v. Chater, 157
F.3d 715, 722 (9th Cir. 1998). Possessing work history or the ability to perform low-skilled,
unsophisticated work and some daily chores does not compel a finding that a claimant lacks
deficits in adaptive functioning. See McGrew, 2015 U.S. Dist. LEXIS 37372 at *17. It must also
be emphasized, that "the introductory paragraph of Listing 12.05 requires evidence that deficits
in adaptive functioning exist, not evidence that a claimant has no adaptive functioning skills." Id.
at 18. Here, Conley is attempting to lead a normal life, but is limited by deficits in adaptive
functioning. Conley's testimony reveals as much and the opinions of Dr. Miner and Dr. Dooley
are in line with Conley's testimony, which undermines the ALJ's adverse credibility
determination. Conley testified to an extensive low skilled work history, which both Dr. Miner

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and Dr. Dooley concluded Conley is capable of performing. Conley worked as a dietary aide at
Providence Hospital, a cashier at the Dollar Tree, a clerk at Food for Less, a cashier at Taco
Time, and an employee at Marshalls. Tr. 43-44. Although Conley's work history is extensive, it
is all in relatively low-skilled positions where she struggles with tests and understanding
instructions from her supervisors. Tr. 51. In fact, Conley was unable to advance at her position at
McDonalds because she flunked the test to become a manager. Tr. 43. Currently, Conley is only
working four hours per week at Marshalls. Tr. 44. Nothing in Conley's work history or testimony
is inconsistent with Dr. Miner or Dr. Dooley's opinion. As noted above, the record indicates
that, while Conley can perform some daily activities, she struggles adapting in work settings and
is overwhelmed by her daily activities.
I conclude that Conley has met Listing 12.05. Therefore, Conley is "presumed unable to
work and is awarded benefits without a determination whether [s]he actually can perform [her]
own prior work or other work." Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting
Sullivan v. Zebley, 493 U.S. 521, 532 (1990). Because the record is complete and demonstrates
Conley meets listing 12.05, this matter is remanded for an award of benefits. Moisa v. Barnhart,
367 F.3d 882, 887 (9th Cir. 2004).
CONCLUSION
The Commissioner's decision is REVERESED. This matter is REMANDED for an
award of benefits.
IT IS SO ORDERED.
DATED this~ day of March, 2017.

\.._

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(

Michael McShane
United State District Judge

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