Gies v. Commissioner of Social Security
Filing
22
Opinion and Order: Judge Coffins Finding & Recommendation is adopted in part. Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioners decision is reversed and the case remanded for immediate award of benefits. Signed on 5/21/2019 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SIGRID G.,1
Plaintiff,
v.
Case No. 3:17-cv-01756
OPINION AND ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________
MCSHANE, Judge:
Plaintiff brings this action for judicial review of the Commissioner of Social Security’s
decision denying her application for Supplemental Security Income and Disability Insurance
Benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
On July 24, 2012, Plaintiff filed an application for Supplemental Security Income and
Disability Insurance Benefits. After a hearing, an Administrative Law Judge determined that she
was not disabled under the Social Security Act. Plaintiff filed the instant appeal challenging that
determination on November 2, 2017. The appeal was assigned to Magistrate Judge Thomas M.
Coffin. On November 20, 2018, Judge Coffin issued a Findings and Recommendation (“F&R”).
In his F&R, Judge Coffin recommended that I reverse and remand the case for further
proceedings. Plaintiff timely filed objections and the matter is now before me. 28 U.S.C. §
636(b)(1)(B); Fed. R. Civ. P. 72(b). I review de novo all portions of an F&R subject to objection.
28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Bus. Machs. Inc., 656 F.2d 1309,
1
In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name of both
the non-governmental party in the case and any immediate family members of that party.
Page 1 – OPINION AND ORDER
1313 (9th Cir. 1981). Upon review, I adopt Judge Coffin’s F&R in part and, because Plaintiff
satisfies the requirements of Listing 12.05(C), REVERSE the ALJ’s decision and REMAND the
case for immediate payment of benefits.
STANDARD OF REVIEW
A reviewing court shall affirm the decision of the Commissioner of Social Security
(“Commissioner”) if her decision is based on proper legal standards and the legal findings are
supported by substantial evidence in the record. 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. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether
substantial evidence exists, the district court must review the administrative record as a whole,
weighing both the evidence that supports and detracts from the decision of the Administrative Law
Judge (“ALJ”). 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 then 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.
Page 2 – OPINION AND ORDER
In the present case, the ALJ found that Plaintiff was not disabled. She first determined that
Plaintiff remained insured for Disability Insurance Benefits until June 30, 2010. Tr. 20. Next, at
step one of the sequential evaluation, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity from her alleged onset date through her date last insured. Tr. 20. At
step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative
bilateral knee joint disease, obesity, intellectual disability, and adjustment disorder with anxiety.
Tr. 20. At step three, the ALJ determined that Plaintiff did not meet or equal the requirements of
any listed impairment in 20 C.F.R. pt. 404, subpt. P, app’x 1 (“Listing”). Tr. 23. The ALJ
specifically found that Plaintiff did not meet Listing 1.02, 1.04, 12.05, or 12.06. Tr. 23.
Before moving to step four, the ALJ found that Plaintiff had the RFC to perform sedentary
work with certain non-exertional limitations. Tr. 29. Specifically, the ALJ found that, in addition
to a number of exertional restrictions, Plaintiff was limited to simple, routine, and repetitive work
tasks and to making simple work-related decisions. Tr. 29. At step four, relying on the testimony
of a Vocational Expert, the ALJ found that Plaintiff was unable to perform past relevant work as
a truck driver or bus driver. Tr. 34. At step 5, after considering her age, education, work
experience, and RFC, the ALJ determined that Plaintiff was capable of performing jobs existing
in significant numbers in the national economy, including wafer breaker, taper, and table worker.
Tr. 35. Having made this determination, the ALJ concluded that Plaintiff was not disabled within
the meaning of the Social Security Act and did not qualify for benefits. Tr. 35.
Plaintiff now challenges the ALJ’s non-disability determination on multiple grounds. As
relevant here, however, Plaintiff argues that the ALJ erred in finding that she did not meet the
requirements of Listing 12.05(C) for intellectual disability. Because I find that the ALJ erred in
Page 3 – OPINION AND ORDER
failing to find Plaintiff disabled under Listing 12.05(C), I do not address Plaintiff's remaining
allegations of error and remand the case for immediate payment of benefits.
I. Listing 12.05(C).
Plaintiff argues that the ALJ erred because she meets the requirements of Listing 12.05(C).2
Listing 12.05 pertains to intellectual disabilities. See 20 C.F.R. pt. 404, subpt. P, app’x 1 § 12.05.
To satisfy the Listing, a claimant must demonstrate “(1) subaverage intellectual functioning with
deficits in adaptive functioning initially manifested before age 22; (2) an IQ score of 60 to 70; and
(3) a physical or other mental impairment causing an additional and significant work-related
limitation.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013). Although the Ninth Circuit
has yet to address the issue, I interpret Listing 12.05 to require a showing of both current deficits
in adaptive functioning and onset of the same before age 22. Accord Davidson v. Berryhill, No.
3:17-CV-00688-SB, 2018 WL 1710441, at *5 (D. Or. Apr. 9, 2018); Josh v. Berryhill, No. 6:16–
cv–1798–SI, 2017 WL 4330780, at *5 (D. Or. Sept. 29, 2017); McGrew v. Colvin, No. 3:13–cv–
01909–SI, 2015 WL 1393291, at *6 (D. Or. Mar. 25, 2015).
As an initial matter, the parties here agree that Plaintiff satisfies the second prong. Plaintiff
submitted a valid Full Scale IQ (“FSIQ”) score of 65, tr. 474, which the ALJ accepted, tr. 26. It is
therefore not in dispute that Plaintiff satisfies the IQ criteria for Listing 12.05(C). In addition,
although the ALJ failed to address whether Plaintiff satisfied the third prong, Plaintiff plainly
suffered from a qualifying impairment. “A finding of severe impairment at step two is a per se
finding of impairment imposing additional and significant work-related limitation of function as
employed in the [third] prong of Listing 12.05C.” Campbell v. Astrue, No. 1:09–cv–00465 GSA,
2
The parties agree that although Listing 12.05 was updated effective January 17, 2017, I should apply the rule that
was in effect at the time the administrative decision became final. See Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. 66138 n.1 (Sep. 26, 2016) (“We expect that Federal courts will review our final decisions
using the rules that were in effect at the time we issued the decisions.”).
Page 4 – OPINION AND ORDER
2011 WL 444783, at *18 (E.D. Cal. Feb. 8, 2011) (citations and quotations omitted) (collecting
cases); Fanning v. Bowen, 827 F.2d 631, 633-34, 633 n.3 (9th Cir. 1987). At step two, the ALJ
found that Plaintiff had several severe impairments, including degenerative bilateral knee joint
disease, obesity, and adjustment disorder with anxiety. Tr. 20. Thus, to the extent the ALJ
impliedly found that Plaintiff did not satisfy the third prong, her finding was in error.
The central issue then is whether the ALJ erred in concluding that Plaintiff had no deficits
in adaptive functioning or an onset of the same prior to age 22. A claimant has deficits in adaptive
functioning if she “fail[s] to meet developmental and sociocultural standards for personal
independence and social responsibility.” American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 33 (5th ed. 2013). These deficits must “limit functioning
in at least one activity of daily life, such as communication, social participation, and independent
living, across multiple environments, such as home, school, work, and community.” Id. “A
claimant may use circumstantial evidence to demonstrate adaptive functioning deficits that existed
prior to age 22, such as attendance in special education classes, dropping out of high school prior
to graduation, difficulties in reading, writing or math, and low skilled work history.” Glenn v.
Colvin, No. 3:12-cv-00886-AA, 2013 WL 3046871, at *3 (D. Or. June 11, 2013) (citation and
quotations omitted). Importantly, a plaintiff need only show that “deficits in adaptive functioning
exist,” not that she has a “complete lack of adaptive functioning.” Walker-Williams v. Berryhill,
3:16-cv-02133, 2018 WL 921504, at *4 (D. Or. Feb. 15, 2018) (citation and quotations omitted).
The record here contains ample evidence of deficits in adaptive functioning prior to age
22. Plaintiff and her mother testified that she was in special education classes from the first through
twelfth grade, tr. 50, 302, and Plaintiff’s high school transcript contains the “SE” abbreviation in
front of virtually all of her courses, tr. 296. The same records also reflect that Plaintiff received a
Page 5 – OPINION AND ORDER
“credit” notation, rather than a letter grade, in each class and that she struggled with speaking and
verbal comprehension. Tr. 296-97, 301. In addition, Plaintiff exhibited numerous behavioral
problems during adolescence, including suicidal ideation, attempted self-harm, and physical
altercations with classmates who mocked her speech deficits. Tr. 472. As several circuits and
other judges in this District have held, Plaintiff’s FISQ score of 65 is also evidence of onset prior
to the age of 22 and gives rise to a rebuttable presumption of the same. See Glenn, 2013 WL
3046871, at *3 (“While the Ninth Circuit has not addressed whether a valid IQ score is entitled to
a presumption that the impairment existed during the claimant's developmental phase, several
other circuit and district courts have, including th[is] District.”) (citations omitted).
The record also contains ample evidence of extant deficits in adaptive functioning. In
addition to Plaintiff’s qualifying FSIQ score, her employment history is limited almost entirely to
low or modified semi-skilled work, tr. 52-58, 231, 472-73 (childcare worker, telemarketer, school
bus driver, fast food worker, deli worker), and she has required substantial assistance to maintain
any position requiring independent decision making, tr. 52, 56-58, 472-73, 476, basic math or
reading skills, tr. 56-57, 472-73, or deviation from easy-to-follow routines, tr. 52, 54, 473, 476.
The consistent theme in Plaintiff’s work history is an ability to follow explicit instructions—such
as directions from a pre-programmed GPS, items requested on a shopping list, instructions on a
cashier screen, or telemarketing scripts—but an inability to reason or make decisions
independently. On top of these workplace limitations, Plaintiff’s aptitude scores place her between
a fourth and fifth grade level on most measures of academic skill, with a particular weakness in
reading comprehension. Tr. 68, 467. The record also contains evidence that, although Plaintiff
can do some basic cooking, clean dishes, and fold laundry, she requires assistance to use a
computer, read email, and conduct household business. Tr. 467.
Page 6 – OPINION AND ORDER
The ALJ offered several reasons for rejecting this evidence. First, the ALJ discounted
Plaintiff’s school records because they did not “indicate [her] IQ score or the specific reasons why
[she] may have qualified for special education.” Tr. 27. It is irrelevant, however, that Plaintiff’s
school records included no IQ score since, as noted above, Plaintiff submitted a valid FSIQ score
of 65 and a person’s IQ score is “presumed [to] remain relatively constant during [her] lifetime.”
Watkins v. Comm’r of Soc. Sec. Amdin, No. CV-16-00168-PHX-DLR, 2017 WL 1191093, at *4
(D. Ariz. Mar. 31, 2017) (citations omitted). In addition, the ALJ’s finding that the reason for
Plaintiff’s participation in special education classes was unclear is not supported by substantial
evidence. Plaintiff’s school records note in multiple places that she struggled with speaking,
comprehension, and psychological issues. Tr. 397, 301. The ALJ cited no evidence to suggest
that the records were wrong or susceptible to competing interpretations; to the contrary, she later
appeared to concede that the records were valid. See tr. 33. In any event, there is virtually no
evidence to suggest that Plaintiff was a student with normal abilities.3
Second, the ALJ opined that “poor academic performance” is insufficient to establish onset
prior to age 22 and assigned “little weight” to Plaintiff’s IQ score. That reasoning was in error.
As already discussed, special education classes are widely accepted as evidence of deficits in
adaptive functioning prior to age 22. See Glenn, 2013 WL 3046871, at *3. Moreover, Plaintiff
Plaintiff stated to Dr. Cogburn that she “believed she was awarded a regular diploma.” Tr. 472. The Commissioner
takes this statement, which was also cited by the ALJ, as evidence that Plaintiff—despite exclusively completing
special education classes and receiving “credit” rather than letter grades—was a mostly normal high school student
who received a normal high school diploma and experienced no deficits in adaptive functioning. That argument,
however, ignores Dr. Cogburn’s warning that Plaintiff “tends to under-estimate [sic] her impairment and need for
support,” tr. 476, and clearly runs counter to the weight of evidence regarding Plaintiff’s education and behavioral
problems. There is, moreover, no diploma in the record and, given that Plaintiff’s transcript is filled with special
education classes, it would be pure speculation to find that she graduated with a “normal” high school degree. It also
makes sense that an individual who has limited cognitive abilities, struggles with comprehension, and was teased for
her differences during childhood would either be unaware that she was awarded less than a full diploma or reluctant
to admit the same. It would be unreasonable to take Plaintiff’s statement at face value when the record contains
evidence which is clearly inconsistent with those statements.
3
Page 7 – OPINION AND ORDER
did more than just struggle in school—she required accommodations for her intellectual disability
and, as the aptitude tests reflect, never reached a middle school level of academic proficiency. In
addition, to the extent the ALJ tried to discount the relevance of Plaintiff’s IQ scores, she offered
no clear rationale for doing so. As the ALJ recognized earlier in her opinion, the scores are valid
and, absent specific reasons for otherwise doubting that Plaintiff had deficits in adaptive
functioning, the scores themselves establish an onset prior to age 22.
Finally, the ALJ reasoned that Plaintiff’s work and volunteer history were inconsistent with
deficits in adaptive functioning. Although the ALJ did not frame it as such, I read this proposition
as an attempt to rebut the presumption of adaptive deficits created by Plaintiff’s qualifying IQ
score and education records. The ALJ described Plaintiff’s work as a “bus driver, truck driver,
childcare worker, telemarketer, grocery store cashier, and restaurant supervisor,” as well as her
experience volunteering with a church food pantry, as “mentally challenging.” Tr. 28. This
characterization is disingenuous at best and, when contextualized, falls well short of the substantial
evidence threshold. In each position, Plaintiff was limited to simple and repetitive manual tasks
like making sandwiches, following a single bus route, or reading from a brief script. She routinely
required assistance with any task involving reading comprehension, arithmetic, or deviation from
a set routine or explicit instructions. Plaintiff, for example, relied on her husband to set a GPS and
complete all paperwork when she worked as a truck driver; had questions read aloud to her on the
examination for her non-commercial driver’s license; and required simplified instructions and
extended training at trucker school. Tr. 48-49, 51-52, 468, 471-73, 476. She was eventually fired
from her position as a telemarketer for reading too slowly, tr. 56, and was quickly dismissed from
a parking attendant position which required basic arithmetic, tr. 56-57, 473.
Page 8 – OPINION AND ORDER
The ALJ placed special emphasis on Plaintiff’s work as a “supervisor” at Burgerville and
the fact that she “ran [a] church food pantry.” Tr. 27-28. There is, however, little evidence that
Plaintiff had managerial responsibilities in either of these positions. Plaintiff did indicate on a
checkbox form that she supervised ten people at Burgerville, tr. 231, and described herself to one
physician as a “lead worker,” tr. 238, but her actual description of the position does not reflect any
supervisory activities, see tr. 472. Instead, Plaintiff “worked the grill, drive through, and cash
register,” performing adequately only if “she could see on a screen in front of her what she was
supposed to do, or how much change she was supposed to give.”4 Tr. 472. Similarly, Plaintiff did
not “operate” a food pantry—she “organize[d]” food with the help of an employee, shopped for
food items based on a list prepared by an employee and with the assistance of an employee, and
would call other volunteers from a list provided by an employee. Tr. 62-64, 471. Plaintiff
nevertheless made mistakes “all the time.” Tr. 65. When viewed in context, it is clear that Plaintiff
has never done more than follow simple instructions and maintain basic routines as part of any
paid or volunteer position—titles notwithstanding. See Glenn, 2013 WL 3046871, at *3 (holding
that plaintiffs are not required to show a “complete lack of adaptive functioning”); Gomez v.
Astrue, 695 F. Supp. 2d 1049, 1057 (C.D. Cal. 2010) (holding that plaintiffs need not “demonstrate
a disabling, or even severe, level of mental functional impairment”).
Ultimately, basic activities of daily living and low-skilled jobs, or even semi-skilled jobs
under certain circumstances, are not inconsistent with deficits in adaptive functioning. See Pedro
4
I agree with the Commissioner that the record is somewhat ambiguous as to whether Plaintiff was a supervisor at
Burgerville. It is clear, however, that the ALJ erred in relying upon Plaintiff’s supervisory role when the nature and
very existence of that role are not supported by substantial evidence. Given Plaintiff’s demonstrated tendency to
overestimate her past abilities and the ALJ’s persistent cherry-picking of the record, I do not believe that additional
proceedings will clarify the issue and it would be unfair to provide the ALJ with another bite at the apple when she
previously had an opportunity to question Plaintiff on the matter and failed to do so. See Benecke v. Barnhart, 379
F.3d 587, 595 (9th Cir. 2004) (“Allowing the Commissioner to decide the issue again would create an unfair ‘heads
we win; tails, let’s play again’ system of disability benefits adjudication.”).
Page 9 – OPINION AND ORDER
v. Astrue, 849 F. Supp. 2d 1006, 1012-14 (D. Or. 2003) (awarding benefits to a plaintiff who
enrolled in special education classes, graduated high school, completed community college
coursework, held a driver’s license, lived independently, cared for her children, and worked as a
teacher’s aide, deli clerk, courtesy clerk, laundress, and fast food worker); Brooks v. Astrue, No.
3:11–cv–01252–SI, 2012 WL 4739533, at *5-8 (D. Or. Oct. 3, 2012) (awarding benefits to a
plaintiff who took 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 impairment of
borderline intellectual functioning); Conley v. Colvin, 274 F. Supp. 3d 1119, 1122-25 (D. Or. 2017)
(awarding benefits to a plaintiff who previously maintained full-time work in low-skilled positions,
performed household chores, cared for her autistic daughter as a single parent, took special
education classes, and struggled to understand school subjects). The ALJ therefore erred in finding
that Plaintiff failed to satisfy the requirements of Listing 12.05(C).
II. Remand for Award of Benefits.
When a district court finds reversable error by an ALJ, it has the discretion to either remand
the case for further proceedings or immediate payment of benefits. Harman v. Apfel, 211 F.3d
1172, 1178 (9th Cir. 2000), cert. denied, 531 U.S. 1083 (2000). The proper disposition turns on
the utility of additional proceedings. Id. at 1179. A remand for award of benefits is appropriate
where further proceedings would serve no useful purpose or where the record is fully developed.
Id. Here, I find that Plaintiff meets the requirements of Listing 12.05(C) and that further
proceedings would serve no useful purpose. Accordingly, remand for immediate payment of
benefits is appropriate. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
Page 10 – OPINION AND ORDER
CONCLUSION
Based on the foregoing, Judge Coffin’s F&R is ADOPTED in part. Pursuant to sentence
four of 42 U.S.C. § 405(g), the Commissioner’s decision is REVERSED and the case
REMANDED for immediate award of benefits.
IT IS SO ORDERED.
DATED this 21st day of May, 2019.
/s/ Michael McShane__________
Michael McShane
United State 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?