Walker-Williams v. Commissioner Social Security Administration
Filing
27
OPINION AND ORDER: The Commissioner's decision is REVERSED and this case is REMANDED for an immediate calculation and award of SSI benefits. Signed on 2/15/2018 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3:16-cv-02133-AA
OPINION AND ORDER
DAYDRENA JASUN WALKER-WILLIAMS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
AIKEN, District Judge:
Plaintiff Daydrena Jaslin Walker-Williams brings this action pursuant to the Social
Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the
Commissioner of Social Security ("Commissioner").
The Commissioner denied plaintiffs
application for Supplemental Security Income ("SSI"). For the reasons set forth below, the
Commissioner's decision is reversed and remanded for immediate payment of benefits.
BACKGROUND
On September 24, 2012, plaintiff applied for SSL
She alleged disability beginning
August 1, 2012, due to back pain, shoulder pain, obesity, attention deficit hyperactivity disorder,
Page 1 - OPINION AND ORDER
bipolar disorder, and intellectual disability. In 2013, Plaintiffs application was denied initially
and upon reconsideration.
On March 4, 2015, plaintiff appeared at a hearing before an
administrative law judge ("ALJ"). At the hearing, plaintiff testified and was represented by an
attorney. A vocational expert also testified.
The ALJ found plaintiff not disabled in a written decision issued April 1, 2015. After the
Appeals Council denied review, plaintiff filed the present complaint.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Beny v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "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." Gutierrez v. Comm 'r of Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that supports and the evidence that detracts from the ALJ' s conclusion." 1'1Jayes v.
1\!fassanari, 276 F.3d 453, 459 (9th Cir. 2001 ). If the evidence is subject to more than one
interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed,
because "the court may not substitute its judgment for that of the Commissioner." Edlund v.
k!assanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION
The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically dete1minable
Page 2 - OPINION AND ORDER
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4);
id. § 416.920(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainful
activity" since the application date, September 24, 2012. 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id.
§§ 416.920(a)(4)(i), (b).
At step two, the ALJ found plaintiff had the following severe
impaiiments: obesity, back pain, and borderline intellectual functioning. Tr. 19; 20 C.F.R. §§
404.1520(a)(4)(ii), (c); id. §§ 416.920(a)(4)(ii), (c).
At step three, the ALJ determined that
plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one
of the listed impairments" that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii), (d).
The ALJ then assessed plaintiffs residual functional capacities ("RFC"). 20 C.F .R. §
404.1520(e); id.§ 416.920(e). The ALJ found the plaintiff could perform medium work, except
that she "is able to do simple routine work consistent with unskilled work." Tr. 23; 20 C.F.R.
416.967(c) At step four, the ALJ concluded the plaintiff had no past relevant work. Tr. 27; 20
C.F.R. §§ 404.1520(a)(4)(iv), (f); id. §§ 416.920(a)(4)(iv), (f). At step five, the ALJ found that
plaintiff could perform work existing in the national economy; specifically, plaintiff could work
as a sandwich maker or fast food worker. Tr. 28; 20 C.F.R. §§ 404.1520(a)(4)(v), (g)(l).
Accordingly, the ALJ found plaintiff not disabled and denied her application for SSL
DISCUSSION
Plaintiff contends the ALJ committed two hmmful legal errors in determining that she
was not disabled. First, plaintiff argues the ALJ' s determination that the plaintiff did not meet or
Page 3 - OPINION AND ORDER
medically equal the criteria of Listing 12.05C was in error. Second, plaintiff asserts the ALJ
erred by failing to incorporate the assessment of State psychologist Dr. Holmes, despite
affording it substantial weight.
I.
Listing 12. 05C Analysis
Plaintiff challenges the ALJ's analysis and application of Listing 12.05C 1 as "incorrect,
incomplete, and improper," thus constituting harmful e1rnr. Pl.' s Opening Br. 7.
The Listings describe, for each major body system, impai1ments that are severe enough to
be per se disabling. 20 C.F.R. § 416.925; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999).
"If you have an impairment which meets the duration requirement and is listed in [20 C.F.R. Pmi
404, Subpmi P,] [A]ppendix 1 or is equal to a listed impairment, the SSA will find you disabled
without considering your age, education, and work experience." 20 C.F.R. §§ 404.1520(d),
416.920(d).
In order to meet a listing, the claimant's impairment must satisfy all of the
components of the listing. Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2014), citing
Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (stating that a claimant "must present medical
findings equal in severity to all the criteria for the one most similar listed impairment").
Claimants have the burden of proving that their impahments meet or equal the requirements of a
listed impairment. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005).
Listing 12.05 governs the SSA's per se standard for intellectual disability. 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 12.05. At the time that plaintiff filed her application for SSI, Listing
12.05 was titled "Mental retardation."2 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05 (effective
1 Because plaintiff filed her application for SSI in September 2012, the version of Listing
12.05 that applies in plaintiffs case is the version that went into effect June 13, 2012. 20 C.F.R.
Pt. 404, Subpt. P, App. 1 § 12.05 (effective June 13, 2012 to April 4, 2013).
2
Listing 12.05 has since been retitled "Intellectual disability" (effective Sept. 3, 2013 to
Jan. 16, 2017) and "Intellectual disorder" (effective as of Jan. 17, 2017).
Page 4 - OPINION AND ORDER
June 13, 2012 to April 4, 2013) (hereafter "Section 12.05"). The operative version of Listing
12.05 consists of an introductory paragraph setting forth the diagnostic description for
intellectual disability, followed by four sets of criteria, paragraphs A through D. Id. "If your
impaitment satisfies the diagnostic description in the introductory paragraph and any one of the
four sets of criteria, we will find that your impairment meets the listing." 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 12.00A (effective June 13, 2012 to April 4, 2013). At the hearing before the
ALJ, plaintiffs counsel specifically argued that the plaintiff would meet Listing 12.05C.
To meet Listing 12.05C, "a plaintiff is required to demonstrate the following: (1)
significantly subaverage intellectual functioning with deficits in adaptive functioning with an
onset before age 22; (2) a valid verbal, performance, or full scale IQ of 60 to 70; and (3) a
physical or other mental impaitment imposing an additional and significant work-related
limitation of function." Pedro v. Astrue, 849 F.Supp.2d 1006, 1011 (D. Or. 2011); see§ 12.05.
The latter two prongs of Listing 12.05C are not at issue in this appeal because plaintiff clearly
meets both requirements. First, plaintiff had a valid verbal IQ score of 63, which the ALJ noted
"was in the range of an intellectual disability." Tr. 20. Second, the ALJ found that plaintiff
suffered from severe impairments of obesity, back pain, and borderline intellectual functioning,
which "have more than a minimal impact on the claimant's ability to perform and sustain basic
work activities."3 Tr. 19. Moreover, plaintiff was 21 years old when she filed for SSI and 20
years old when she underwent an intellectual evaluation, including the IQ test which yielded the
3
"The Ninth Circuit has held that 'an impaitment imposes a significant work-related
limitation of function when its effect on a claimant's ability to perform basic work activities is
more than slight or minimal."' Pedro, 849 F.Supp.2d at 1015, citing Fanning v. Bowen, 827
F.2d 631, 633 (9th Cir.1987). "If the claimant has another severe impairment at step two, then
the requirement [of an additional and significant work-related limitation of function] is
satisfied." Brooks v. Colvin, 2012 WL 4739533, *8 (D. Or. 2012), citing Fanning, 827 F.2d at
633 n. 3 (internal citations omitted); Pedro, 849 F.Supp.2d at 1015.
Page 5 ~OPINION AND ORDER
verbal IQ score of 63. Thus, all observed deficits necessarily had an onset before age 22. Only
the first prong of Listing 12.05C remains at issue in plaintiffs appeal.
The first prong of Listing 12.05C is drawn from the diagnostic description in the
introductory paragraph of Listing 12.05: "Mental retardation 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." Section 12.05. "Although the introductory paragraph of Listing 12.05 is a
diagnostic description for intellectual disability rather than a specific criterion, it functions as a
substantive requirement." McGrew v. Colvin, 2015 WL 1393291, *5 (D. Or. 2015), citing
Kennedy, 738 F.3d at 1176. However, "a formal diagnosis of mental retardation is not required
to meet Listing 12.05C," as has been held by numerous district courts within the Ninth Circuit,
including the District of Oregon, and the Eighth Circuit. Pedro, 849 F.Supp.2d at 1010, citing
Stokes v. Astrue, 2011 WL 285224, *8-9 (D. Or. 2011); ]vfaresh v. Barnhart, 438 F.3d 897, 899
(8th 2006); string citation omitted.
Here, the ALJ dete1mined that plaintiff did not fulfill the diagnostic description of Listing
12.05 because, in the ALJ's assessment, the plaintiff demonstrated adequate adaptive
functioning. As a result, the ALJ found plaintiff failed to meet Listing 12.05C. 4 The ALJ recited
the following facts as evidence that the plaintiff did not demonstrate deficits in adaptive
functioning: the plaintiff finished high school without an individualized education plan (IEP),
was able to attend to personal needs such as bathing and grooming, used public transportation
without accompaniment, shopped in stores for clothes, and could operate a phone and computer.
The ALJ futiher noted that the plaintiff "was not diagnosed with an intellectual disability by an
4
The ALJ's Listing 12.05C analysis is explained in the step two portion of his written
decision. Tr. 20-21.
Page 6 - OPINION AND ORDER
acceptable medical source." Tr. 20. The ALJ concluded, "the weight of the evidence would not
suppmt finding that the claimant has an impainnent of intellectual disability." Id.
Adaptive functioning has been defined as "how effectively individuals cope with
common life demands and how well they meet the standards of personal independence expected
of someone in their paiticular age group, socioeconomic background, and community setting."
Pedro, 849 F.Supp.2d at 1011 n. 1, citing American Psychiatric Ass 'n. Diagnostic & Statistical
lvfanual of lvfental Disorders 42 (4th ed. 2000, text revision). The U.S. Supreme Court has
observed adaptive functioning to mean a "person's effectiveness in areas such as social skills,
communication, and daily living skills, and how well the person meets the standards of personal
independence and social responsibility expected of his or her age by his or her cultural group."
Heller v. Doe, 508 U.S. 312, 329 (1993), citing American Psychiatric Ass'n. Diagnostic &
Statistical lvfanua/ oflvfental Disorders 28-29 (3d rev. ed. 1987).
Claimants typically use circumstantial evidence to prove deficits in adaptive fi.mctioning
that manifested prior to age 22. See e.g. Glenn v. Colvin, 2013 WL 3046871, *3 (D. Or. 2013),
citing Pedro, 849 F.Supp.2d at I 011. Relevant circumstantial evidence may 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." Pedro, 849 F.Supp.2d at 1012, quoting
Campbell v. Astrue, 2011 WL 444783, *17 (E.D. Cal. 2011).
Notably, claimants need not demonstrate a complete lack of adaptive functioning in order
to fulfill the first element of Listing 12.05C. "[T]he introductory paragraph of Listing 12.05
requires evidence that deficits in adaptive functioning exist, not evidence that claimant has no
adaptive functioning skills." 1\1cGrew, 2015 WL 1393291, at *7. "[D)aily activities such as
reading, driving, and cleaning are not necessarily inconsistent with mental retardation." Pedro,
Page 7 - OPINION AND ORDER
849 F.Supp.2d at 1013, citing Huber v. Astrue, 2010 WL 4684021, *4 (D. Ariz. 2010).
Similarly, the Sixth Circuit has held the following activities do not preclude a claimant from
meeting Listing 12.05: using public transit, following a road map, driving, doing laundry and
cleaning, reading a newspaper, and making change at a grocery store. Brown v. Sec '.Y of Health
and Human Servs., 948 F.2d 268, 270 (6th Cir. 1991). In sum, "[p]ossessing 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." Conley v. Colvin, 2017 WL
1370707, *4 (D. Or. 2017), citing1VfcGrew, 2015 WL 1393291 at *7.
Moreover, assessment of the severity of impairment is not contemplated by the
introductory paragraph of Listing 12.05. Courts have noted that Listing 12.05 is structured
differently than other mental disorder listings: claimants can meet Listings 12.05A-C "without
having to demonstrate a disabling, or even severe, level of mental functional impainnent."
Gomez v. Astrue, 695 F.Supp.2d 1049, 1057 (C.D. Cal. 2010). "Because severity of the deficits
is established by sections A, B, C, and D, the Court does not assess severity in considering
whether a claimant meets the requirements of Listing 12.05's introductory paragraph."
~McGrew,
2015 WL 1393291 at *6.
Here, plaintiff has demonstrated circumstantial evidence relevant to adaptive functioning
deficits. Plaintiff was enrolled in special education classes before high school, completed high
school, and reported that certain subjects were difficult for her.
Plaintiff was not able to
complete the one community college course she attempted, nor has she been able to attain a
driver's license.
Plaintiffs employment history is limited to low-skilled work as a fast food worker and
sandwich maker.
Plaintiff testified that at her job as a sandwich maker, she had difficulty
Page 8 - OPINION AND ORDER
remembering or understanding customers' sandwich orders. Plaintiff also reported difficulty
working the cash register and counting change. Plaintiff struggled with work when she did not
receive one-on-one supervision and guidance from management.
Additionally, at the time of hearing, plaintiff had never lived independently. Plaintiff
testified that she has trouble doing her own laundry and her ability to prepare meals is limited to
simple foods such as sandwiches and snacks. Further, plaintiff does not manage her own money.
Plaintiff is only able to use public transportation to get to places she has previously been.
Several District of Oregon cases addressing Listing 12.05C contain facts which offer
valuable comparisons to the present case. Pedro v. Astrue, 849 F. Supp.2d I 006 (plaintiff met
Listing 12.05C when she had been enrolled in special education classes at an early age,
completed high school, completed coursework at a community college, held a driver's license,
lived independently, cared for her children, and had a work history that included employment as
a teacher's aide, deli clerk, courtesy clerk, laundress, and fast food worker); Brooks v. Astrue,
2012 WL 4739533 (plaintiff met Listing 12.05C when he had been enrolled in special education
classes prior to high school, held a driver's license, worked as a dump truck driver for eight
years, and was found at step two to have a severe impahment of borderline intellectual
functioning); Conley, 2017 WL 1370707 (plaintiff met Listing 12.05C when she had taken
special education classes, had difficulty understanding school subjects, previously maintained
full-time work in low-skilled positions, performed household chores, cared for her daughter as a
single parent, and had a verbal IQ score of 70). See also Glenn, 2013 WL 3046871; McGrew,
2015 WL 1393291; Nicholson, 106 F.Supp.3d 1190 (D. Or. 2015). Case law demonstrates that
plaintiffs can fulfill the Listing 12.05C adaptive functioning deficit requirement across a wide
spectrum of circumstances.
Page 9 - OPINION AND ORDER
Examining the record as a whole, and other relevant case law cited above, I conclude that
the ALJ committed legal en-or in holding that the plaintiff did not satisfy the first prong of
Listing 12.05C. The record shows that plaintiff demonstrated deficits in adaptive functioning,
along with significantly subaverage intelligence, prior to age 22. "The listing does not require
more." Pedro, 849 F. Supp.2d at 1014. Because the plaintiff has already fulfilled the latter two
prongs of Listing 12.05C, pertaining to IQ and additional work-related limitations, I conclude
that the plaintiff has met the requirements of Listing 12.05C. 5
After finding the ALJ erred, I have the discretion to remand for further proceedings or for
immediate payment of benefits. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied,
531 U.S. 1083 (2000). The issue turns on the utility of further proceedings. Id. at 1179. A
remand for award of benefits is appropriate where there is no useful purpose to be served by
further proceedings or where the record is fully developed. Id.
Here, plaintiff meets the requirements of the listing, thus she is found presumptively
disabled under the Act. Holohan v. j\;fassanari, 246 F.3d 1195, 1211 (9th 2001 ). The record is
fully developed, and further proceedings would serve no useful purpose. Accordingly, remand
for immediate calculation and award of benefits is appropriate. Garrison v. Colvin, 759 F.3d
995, 1020 (9th Cir. 2014). 6
Ill
Ill
5
The ALJ's observation that the plaintiff had not been formally diagnosed with an
intellectual disability by a medical professional does not ca11'y substantial weight because a
foimal diagnosis is not required to meet Listing 12.05C. See Pedro, 849 F.Supp.2d at 1010,
internal citations omitted.
6
Because I have held that the ALJ committed reversible error in the step three analysis,
and that error requires remand for immediate payment of benefits, it is unnecessary to address
the remaining arguments in plaintiffs brief.
Page 10- OPINION AND ORDER
CONCLUSION
The Commissioner's decision is REVERSED and this case is REMANDED for an
immediate calculation and award of SSI benefits.
IT IS SO ORDERED.
Dated
thi~ /~ofFebruary2018.
Ann Aiken
United States District Judge
Page 11 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?