Church v. Commissioner Social Security Administration
Filing
25
Opinion and Order reversing and remanding the Commissioner's decision for an award of benefits with a disability onset date of December 19, 2006. Signed on 12/9/2015 by Magistrate Judge Janice M. Stewart. (ST)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
STEPHEN EARL CHURCH,
Plaintiff,
Case No. 6:14-cv-01373-ST
v.
OPINION AND ORDER
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
STEWART, Magistrate Judge:
INTRODUCTION
Plaintiff, Stephen Earl Church (“Church”), seeks judicial review of the final decision
by the Social Security Commissioner (“Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“SSA”),
42 USC §§ 401–33. This court has jurisdiction to review the Commissioner’s decision
pursuant to 42 USC § 405(g) and § 1383(c)(3). The Commissioner concedes reversible
error and requests a remand for additional administrative proceedings. Church opposes
additional administrative proceedings and seeks a remand for an award of benefits. All
parties have consented to allow a Magistrate Judge to enter final orders and judgment in this
1 – OPINION AND ORDER
case in accordance with FRCP 73 and 28 USC § 636(c). For the reasons set forth below, the
Commissioner’s decision is REVERSED and REMANDED for an immediate award of
benefits.
ADMINISTRATIVE HISTORY
Church protectively filed for DIB on May 24, 2011 1, alleging a disability onset date
of December 19, 2006. Tr. 116–17, 175–78. 2 His application was denied initially and on
reconsideration. Tr. 118–21, 123–26. On January 15, 2013, a hearing was held before
Administrative Law Judge (“ALJ”) Riley J. Atkins. Tr. 43–66. The ALJ issued a decision
on January 29, 2013, finding Church not disabled. Tr. 21–41. The Appeals Council
considered additional evidence and denied a request for review on July 9, 2014. Tr. 1–6.
Therefore, the ALJ’s decision is the Commissioner’s final decision subject to review by this
court. 20 CFR § 404.981, 422.210.
BACKGROUND
Born in 1951 (Tr. 175), Church was 61 years old at the time of the hearing before the
ALJ. He received a high school education and has past relevant work experience as a
janitor, painter, and groundskeeper. Tr. 80. Church alleges that he is unable to work due to
the combined impairments of a learning disability, thyroid disorder, low bone density, hiatal
hernia, and right knee injury. Tr. 194.
///
///
1
Church also filed applications on April 14, 2010 and October 25, 2010, which were denied. Tr. 67–113. At
the disability hearing, Church’s attorney explained that the October 25, 2010 application was an attempt to
refile the April 14, 2010 application. Tr. 47. Church’s request for reconsideration was dismissed as untimely
filed (Tr. 186), requiring him to file a new claim. Tr. 188.
2
Citations are to the page(s) indicated in the official transcript of the record filed on December 29, 2014
(docket #9).
2 – OPINION AND ORDER
ALJ’S FINDINGS
Disability is the “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential
inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 CFR
§ 404.1520; Tackett v. Apfel, 180 F3d 1094, 1098-99 (9th Cir 1999).
At step one, the ALJ concluded that Church has not engaged in substantial gainful
activity during the period from his alleged onset date of December 19, 2006, through his
date last insured of June 30, 2012. Tr. 26.
At step two, the ALJ determined that Church has the severe impairments of
borderline intellectual functioning, anxiety disorder, and dysthymic disorder. Id.
At step three, the ALJ concluded that Church does not have an impairment or
combination of impairments that meets or equals any of the listed impairments. Tr. 28. The
ALJ found that Church has the RFC to perform a full range of work with the following
nonexertional limitations: only “work of a simple, routine, repetitive nature” that does not
require “competency or fluency of written expression.” Tr. 30.
Based upon the testimony of a vocational expert (“VE”), the ALJ determined at step
four that Church was capable of performing his past relevant work as a janitor or
groundskeeper. Tr. 36.
Accordingly, the ALJ determined that Church was not disabled at any time from
December 19, 2006, the alleged onset date, through June 30, 2012, the date last insured.
Tr. 37.
3 – OPINION AND ORDER
DISCUSSION
Church argues that the ALJ erred in finding that he did not meet the requirements of
Listing 12.05C and by adopting VE testimony that did not accurately describe his past
relevant work. The Commissioner concedes the ALJ erred in both respects, but argues that
the record does not contain sufficient evidence that Church meets Listing 12.05C and that
additional administrative proceedings are required to further develop the record.
A claimant is presumptively disabled and entitled to benefits if he or she meets or
equals a listed impairment. To “meet” a listed impairment, a disability claimant must
establish that his condition satisfies each element of the listed impairment in question.
Sullivan v. Zebley, 493 US 521, 530 (1990); Tackett, 180 F3d at 1099. To “equal” a listed
impairment, a claimant “must establish symptoms, signs, and laboratory findings” at least
equal in severity and duration to each element of the most similar listed impairment.
Tackett, 180 F3d at 1099-1100, quoting 20 CFR § 404.1526.
Listing 12.05 provides in relevant part:
12.05 Intellectual disability: Intellectual disability refers to
significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the
development 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. . .
Although the introductory paragraph is a diagnostic description for intellectual disability,
rather than a specific criterion, it functions as a substantive requirement. See Listing 12.00(A)
4 – OPINION AND ORDER
(“If your impairment satisfies the diagnostic description in the introductory paragraph [of Listing
12.05] and any one of the four sets of criteria, we will find that your impairments meets the
listing.”); Kennedy v. Colvin, 738 F3d 1172, 1176 (9th Cir 2013). In other words, the
introductory paragraph (prong one) establishes that a qualifying intellectual disability exists, and
the criteria within “C” (prongs two and three) establish its severity. “Thus, Listing 12.05C has
three main components: (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, 738 F3d at 1176.
The Commissioner concedes that the second and third prongs 3 are met in this case
and that the only issue is whether the record contains substantial evidence to establish that
Church experienced deficits in adaptive functioning prior to age 22. Although the ALJ
discussed whether Church met the criteria of Listing 12.05C, he did not make a finding
regarding the first prong of the analysis. Tr. 30.
Listing 12.05C does not require a diagnosis or medical finding of mental retardation
prior to age 22, but relies instead on valid IQ scores in conjunction with other circumstantial
evidence, 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.” Pedro
v. Astrue, 849 F Supp2d 1006, 1011–12 (D Or 2011) (citations omitted). Church argues that
he satisfies the first prong of Listing 12.05C based on his IQ scores within the relevant
range (Tr. 325), a history of attending special education classes (Tr. 53, 322, 350), and a
3
The Commissioner revised the regulations in 2000 to clarify that additional impairments defined as “severe” in 20 CFR
USC §§ 404.1502(c) and 416.920(c) satisfy the third prong of Listing 12.05C. “We always have intended the phrase to
mean that the other impairment is a ‘severe’ impairment as defined in §§ 404.1520(c) and 416.920(c).” Revised Medical
Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed Reg 50746, 50772 (Aug. 21, 2000).
5 – OPINION AND ORDER
work history of inconsistent employment and low earnings. Tr. 181. The Commissioner
contends that a remand is necessary for further development on the issues of the validity of
Church’s claim that he attended special education classes.
The decision whether to remand for further proceedings or for immediate payment of
benefits generally turns on the likely utility of further proceedings. Harman v. Apfel, 211
F3d 1172, 1179 (9th Cir 2000). When “the record has been fully developed and further
administrative proceedings would serve no useful purpose, the district court should remand
for an immediate award of benefits.” Benecke v. Barnhart, 379 F3d 587, 593 (9th Cir 2004).
The decision whether to remand this case for further proceedings or for the payment of
benefits is a decision within the discretion of the court. Harman, 211 F3d at 1178.
As the ALJ acknowledged, the record includes an Intellectual Assessment by Ben
Kessler, Psy.D., in 2010 showing that Church has a full-scale IQ range of 60–70. Tr. 30,
citing Tr. 325. However, Listing 12.05C requires that Church had a qualifying intellectual
disability of the severity indicated by that low IQ score before the age of 22.
Some circuits have credited low IQ scores after age 22 as presumptively proving that
the intellectual disability manifested itself prior to age 22. See Hodges v. Barnhart, 276 F3d
1265, 1268 (11th Cir 2001) (IQ scores after age 22 satisfy the listing criteria and “create a
rebuttable presumption of a fairly constant IQ throughout life”); Muncy v. Apfel, 247 F3d 728,
734 (8th Cir 2001) (“Mental retardation is not normally a condition that improves as an
affected person ages. . . . . Rather, a person’s IQ is presumed to remain stable over time in
the absence of any evidence of a change in a claimant’s intellectual functioning”); Luckey v.
U.S. Dep’t of Health & Human Servs., 890 F2d 666, 668-69 (4th Cir 1989). Other circuits
have been reluctant to adopt a per se presumption and require some evidence that the onset
6 – OPINION AND ORDER
preceded age 22. Markle v. Barnhart, 324 F3d 182, 188-89 (3rd Cir 2003); Foster v. Halter,
279 F3d 348, 354–55 (6th Cir 2001).
The Ninth Circuit has not considered whether or adopt this rebuttable presumption.
Fatheree v. Colvin, No. 1:13-CV-01577-SKO, 2015 WL 1201669, at *11 (ED Cal Mar. 16,
2015). Nonetheless, district courts in the Ninth Circuit, including this court, have applied the
presumption. See Robinson v. Comm’r of Soc. Sec., No. 2:14-cv-0051-KJN, 2015 WL
925609, at *4 (ED Cal Mar. 2, 2015) (collecting cases adopting rebuttable presumption); see
also Brooks v. Astrue, No. 3:11-CV-01252-SI, 2012 WL 4739533, at *6 (D Or Oct. 3, 2012)
(collecting District of Oregon cases). But see Clark v. Astrue, 2012 WL 423635, at *5–6 (ED
Cal Feb. 8, 2012) (declining to adopt rebuttable presumption, “especially in a situation
where there are glaring discrepancies in the IQ scores in the first place”); Rhein v. Astrue,
2010 WL 4877796, at *8 (ED Cal Nov. 23, 2010) (declining to adopt rebuttable
presumption on grounds it would remove plaintiff’s burden at Step Three).
This court finds those cases applying the rebuttable presumption persuasive. The
presumption is particularly persuasive in this case given substantial evidence in the record
that Church required special education from fifth grade until he completed the twelfth grade.
As summarized by Dr. Kessler:
[Church] stated that his education was very poor and that instructors did
not ensure that he had learned material before moving on to new material
or passing him to another grade. . . . When asked about grades he states
that he earned C’s and D’s to the best of his recollection but that he is not
100% sure about this and related that they just gave him his grades to pass
him on to the next grade.
Tr. 322.
Church testified to having continued difficulty reading and writing and requiring a tutor
and testing accommodations when he pursued a certificate in supervision from Linn Benton
7 – OPINION AND ORDER
Community College. Tr. 53-54, 355. His attempts to join the military were unsuccessful
because he could not pass the tests, despite four or five attempts. Tr. 323. Furthermore,
Church’s attorney reported in a letter to SSA that Church has “limited academic capacities” and
“has problems with paperwork.” Tr. 189.
Although the ALJ found Church “not fully credible” (Tr. 34) which Church does not
challenge, the ALJ did not specifically evaluate Church’s statements regarding his intellectual
deficits. More importantly, the report from Church’s older sister, Annelle Church Price, attests
that he has suffered from intellectual deficits throughout his life. Tr. 297-98. Being close in age,
she was in the same classroom as Church in the first and second grades and lived at home with
him until graduation from high school. Tr. 297. She states that Church’s IQ was tested in early
elementary school and determined to be “low” and that he was placed in special education for the
“rest of his school career.” Id. She also states that Church has always requested help with
“reading and completion of any official forms,” but could “read the newspaper sports section
with great difficulty but enough to get the information he wanted.” Tr. 297-98. Their mother
believed that he has suffered brain damage at birth. Tr. 298.
Ms. Price’s report was submitted to the Appeals Council and not available to the ALJ.
However, when the Appeals Council considers new evidence in deciding whether to review a
decision of the ALJ, that evidence becomes part of the administrative record and must be
considered by this court when reviewing the Commissioner’s final decision for substantial
evidence. Brewes v. Comm’r of Soc. Sec. Admin., 682 F3d 1157, 1162 (9th Cir 2012). This
report is based on personal observations over a long period of time and fully corroborates
Church’s claims of attending special education classes during the majority of his early
education.
8 – OPINION AND ORDER
The only inconsistent evidence in the record of Church’s early education experience is
the answer “no” on Form SSA 3368 (Disability Report) to the question “Did you attend special
education classes?” Tr. 195. But it is not clear who filled out that form since the Function
Report states that Church “does not have the literacy skills to have done this form alone.
Questions were read to him and written down for him.” Tr. 207. Accordingly, that evidence is
entitled to little weight and does not rebut the presumption that Church’s intellectual disability
was manifested prior to age 22. Because Church meets the criteria of Listing 12.05C, this
case must be remanded for an award of immediate benefits.
Another issue is the period for which benefits may be awarded. Church’s alleged
disability onset date in his recent application, December 19, 2006, is the same as the date in his
first set of applications. Tr. 67, 87, 175. Normally, the doctrine of res judicata forecloses a
claimant from asserting a disability that falls within the previously adjudicated period. However,
“[r]es judicata does not apply when an ALJ later considers ‘on the merits’ whether the claimant
was disabled during an already-adjudicated period” and, thus, de facto reopens the prior
adjudication. Lewis v. Apfel, 236 F3d 503, 510 (9th Cir 2001); see also Lester v. Chater, 81 F3d
821, 827 (9th Cir 1995) (as amended Apr. 9, 1996).
Church argues that any benefits awarded on remand should be based on all his
applications, including his first set of applications, because the ALJ considered the merits of the
earlier applications in his opinion. The ALJ stated that Church “filed prior applications for a
period of disability insurance benefits on April 14, 2010 and October 25, 2010. These
applications were denied. They have been considered in this decision.” Tr. 24. The ALJ’s use
of the word “considered” is not as ambiguous as the Commissioner contends. The ALJ accepted
the alleged onset date of December 19, 2006, and considered evidence of disability from as early
9 – OPINION AND ORDER
as 2006. Tr. 24, 41. Therefore, it is appropriate to treat the ALJ’s consideration as a de facto
reopening of the prior adjudications and to assume a disability onset date of December 19, 2006,
as did the ALJ.
ORDER
For the reasons discussed above, the Commissioner’s decision is REVERSED and
REMANDED pursuant to Sentence Four of 42 USC § 405(g) for an immediate award of
benefits with a disability onset date of December 19, 2006.
DATED December 9, 2015.
s/ Janice M. Stewart
Janice M. Stewart
United States Magistrate Judge
10 – OPINION AND ORDER
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