Leedy v. Commissioner Social Security Administration

Filing 17

Opinion and Order: The Commissioner's decision is Reversed. This matter is Remanded for an award of benefits. Signed on 2/1/2017 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBIN ROSE LEEDY,
Plaintiff,
v.

Civ. No. 6:16-cv-00062-MC
OPINION AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security
Administration,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Robin Rose Leedy filed an application for Supplemental Security Income (SSI)
on June 20, 2012. After a hearing, the administrative law judge (ALJ) issued a written decision
finding Leedy not disabled. Tr. 18-31. When the Appeals Council denied Leedy’s request for
review, the ALJ’s decision became the final decision of the Commissioner.
Leedy seeks judicial review of the Commissioner’s decision. For the purpose of this
appeal, Leedy alleges disability as of the month she turned 55 years of age. Pl.’s Br., 1. Leedy’s
residual functional capacity (RFC) as set forth by the ALJ demonstrates she meets the medicalvocational profile set forth in 20 C.F.R. § 416.962(b). Under the regulations, Leedy is therefore

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disabled. The ALJ’s decision is REVERSED and this matter is REMANDED for an award of
benefits.1
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.
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 court reviews the
administrative record as a whole, weighing both the evidence that supports and that which
detracts from the ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).
DISCUSSION
The Social Security Administration uses 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 claimant satisfies his or her burden with respect
to the first four steps, the burden shifts to the Commissioner at step five. 20 C.F.R. § 404.1520.
At step five, the Commissioner’s burden is to demonstrate 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 two, the ALJ determined that Leedy had severe impairments of: status postsurgical intervention for distal left leg injury with some residual anomalies; obesity; attention

1

Because Leedy meets § 416.962(b), I need not address her other allegations of error.

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deficit hyperactivity disorder, generalized anxiety disorder, and personality disorder. Tr. 23. The
ALJ found Leedy had the RFC to perform medium work provided, amongst other things, that she
is “limited to simple, repetitive, routine tasks. . . .” Tr. 26.
For the purpose of this appeal, Leedy accepts the ALJ’s RFC. Leedy argues that given
that RFC, she meets the medical-vocational profile set forth in 20 C.F.R. § 416.962(b) as a
matter of law. One meets the medical-vocational profile of § 416.962(b) if one: has a severe,
medically determinable impairment; is 55 or older; has a limited education or less as defined in §
416.964, and; has no past relevant work experience.
Leedy turned 55 years old in 2013. She has severe, medically determinable impairments.
She has no past relevant work experience. The only factor in dispute is whether Leedy has a
limited education or, as argued by the Commissioner, she has a high school education or above.
The Commissioner argues that common sense dictates that because Leedy has a GED, she has at
least a high school education. I disagree. Under these facts, and given the medical findings
credited by the ALJ, Leedy meets, at best, the “limited education” set out in § 416.964. As a
matter of law, Leedy is disabled under the regulations. See § 416.962(b) (“If the evidence shows
that you meet this profile, we will not need to assess your residual functional capacity or
consider the rules in appendix 2 to subpart P of part 404 of this chapter.”).
The regulations lay out the framework for considering someone’s education as a
vocational factor. § 416.964.
(a) General. Education is primarily used to mean formal schooling or other
training which contributes to your ability to meet vocational requirements, for
example, reasoning ability, communication skills, and arithmetical ability.
However, if you do not have formal schooling, this does not necessarily mean that
you are uneducated or lack these abilities. Past work experience and the kinds of
responsibilities you had when you were working may show that you have
intellectual abilities, although you may have little formal education. Your daily

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activities, hobbies, or the results of testing may also show that you have
significant intellectual ability that can be used to work.
(b) How we evaluate your education. The importance of your educational
background may depend upon how much time has passed between the completion
of your formal education and the beginning of your physical or mental
impairment(s) and by what you have done with your education in a work or other
setting. Formal education that you completed many years before your impairment
began, or unused skills and knowledge that were a part of your formal education,
may no longer be useful or meaningful in terms of your ability to work.
Therefore, the numerical grade level that you completed in school may not
represent your actual educational abilities. These may be higher or lower.
However, if there is no other evidence to contradict it, we will use your numerical
grade level to determine your educational abilities. The term education also
includes how well you are able to communicate in English since this ability is
often acquired or improved y education. In evaluating your educational level, we
use the following categories:
(1) Illiteracy. Illiteracy means the inability to read or write. We consider
someone illiterate if the person cannot read or write a simple message such as
instructions or inventory lists even though the person can sign his or her name.
Generally, an illiterate person has had little or no formal schooling.
(2) Marginal education. Marginal education means ability in reasoning,
arithmetic, and language skills which are needed to do simple, unskilled types of
jobs. We generally consider that formal schooling at a 6th grade level or less is a
marginal education.
(3) Limited education. Limited education means ability in reasoning,
arithmetic, and language skills, but not enough to allow a person with these
educational qualifications to do most of the more complex job duties needed in
semi-skilled or skilled jobs. We generally consider that a 7th grade through the
11th grade level of formal education is a limited education.
(4) High school education and above. High school education and above
means abilities in reasoning, arithmetic, and language skills acquired through
formal schooling at a 12th grade level or above. We generally consider that
someone with these educational abilities can do semi-skilled through skilled
work.
Leedy dropped out of school after finishing the 8th grade. She obtained a GED certificate
in 1980. She has no relevant work experience after obtaining her GED. Leedy was homeless
during many of the years between obtaining her GED and filing for benefits. Leedy earned over

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$400 in only three years since obtaining her GED. Leedy earned $703.69 in 1991, the last year
she reported earnings.
The Commissioner argues Leedy’s 33-year-old GED (as of the year she turned 55)
demonstrates she has a “high school education and above.” Considering Leedy’s RFC, her work
history, and the medical opinions credited by the ALJ, I disagree.
Going strictly by her formal schooling, Leedy meets the “limited education” category of a
7th through 11th grade level of formal education. § 416.964(b)(3). But the regulations recognize
that other factors, such as work history or activities of daily living, may factor into someone’s
educational abilities. “However, if there is no other evidence to contradict it, we will use your
numerical grade level to determine your educational abilities.” § 416.964(b). Here, Leedy has no
work history and her activities of daily living in no way indicate her educational abilities exceed
that of a limited education.
Additionally, the ALJ concluded Leedy was limited to “simple, repetitive, routine tasks.”
Tr. 26. This finding corresponds with a limited education which does not “allow a person with
these educational qualifications to do most of the more complex job duties needed in semiskilled or skilled jobs.” § 416.964(b)(3). Someone with a high school education and above is
capable of “semi-skilled through skilled work,” § 416.964(b)(4), which Leedy’s limitation to
“simple, repetitive, routing tasks” precludes. The ALJ gave great weight to the nonexamining
state agency psychologist who opined Leedy was capable of remembering 1 to 2 step instructions
but incapable of carrying out more detailed instructions. Tr. 29.
Of course a GED may under many, if not most, circumstances correspond with a high
school education and above. “However, if there is no other evidence to contradict it, we will use
your numerical grade level to determine your educational abilities.” § 416.964(b). Here, the

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ALJ’s own findings demonstrate Leedy falls into the “limited education” category where she is
precluded from completing “the more complex job duties needed in semi-skilled or skilled jobs.”
Id. Under these facts, the ALJ erred in relying solely on a GED, rather than the factors set forth
in § 416.964 to establish Leedy had a “high school education and above.” Leedy meets the
medical-vocational profile set forth in § 416.962(b) and is therefore disabled under the
regulations as of the month she turned 55.
CONCLUSION
The Commissioner’s decision is REVERSED. This matter is REMANDED for an award
of benefits.
IT IS SO ORDERED.
DATED this 1st day of February, 2017.
________/s/ Michael McShane_________
Michael McShane
United State District Judge

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