The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 1)
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act. 42 U.S.C. § 1383(c). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.
Plaintiff was born on April 19, 1989, and has completed the 10th grade. (Administrative Record ("AR") 26-27, 109.) Plaintiff has no previous work history. (AR 14, 159.) On March 18, 2009, Plaintiff filed an application for SSI, alleging disability due to dyslexia and a left-knee problem. (AR 105.)
On October 11, 2008, Plaintiff underwent a psychological evaluation performed at Sabella Medical Group. (AR 261-66.) Upon testing, Plaintiff was found to have borderline intellectual functioning. (AR 265.) Rosa Colonna, Ph.D., determined that Plaintiff "would be able to understand, remember, and carry out short and simplistic instructions without difficulty." (AR 265.) Dr. Colonna also indicated that Plaintiff presented with a mild inability to understand, remember and carry out detailed instructions, but that he would be able to make simplistic work-related decisions without special supervision. (AR 265.)
On February 25, 2009, Plaintiff underwent a second psychological evaluation by Kimball Hawkins, Ph.D. (AR 267-70.) The testing results yielded scores that were "in the borderline deficient range on non-verbal intellectual measures" and indicated an academic achievement at the elementary level. (AR 269.) Plaintiff was diagnosed with a borderline level of intellectual functioning. Dr. Hawkins recommended that Plaintiff be referred to the Kern Regional Center Clinical Team regarding eligibility so that he could receive training in a transitional program and receive independent living skills training. (AR 270.)
On June 22, 2009, Plaintiff underwent a third psychological evaluation by Mark D. Pierce, Ph.D. (Doc. 281-84.) Dr. Pierce provided the following discussion of Plaintiff's impairment:
This claimant evidences borderline to deficient range intellectual capacity, with selectively stronger cognitive skills demonstrated overall by testing today. He is a slow but fair responder verbally, against a background of denied affective or behavioral disturbances, either by mother completing Patient History or per the claimant, while he is also a non-spontaneous personality throughout.
By today's performance, he apparently just retains the capacity to complete simple and repetitive vocational skills and to adapt to minimal changes in a work environment. Reasoning capacities are finally judged adequate to this lower level of vocational functioning, despite the fact that the claimant appears to show social skills and other adaptive deficits by report and presentation.
The claimant would have mild to greater difficulty working effectively with others, due to inhibitions of personality as noted today. He can remember and comply with simple one and two part instructions. He is finally concluded able to concentrate just adequately for a regular work schedule for a full workweek.
B. Vocational Training Records
In July 2009, Plaintiff began training in a program called the Desert Area Resources & Training ("DART"). (AR 158.) The program offered through DART allowed Plaintiff to be paid sub-minimum wage based on his productivity. (AR 161.) Currently, Plaintiff has been assigned to grounds keeping. (AR 29.) At DART, Plaintiff is provided a job coach to help him complete tasks on the job, special transportation, a work schedule provided by the job coach, assistance with tasks, and a lower quality of work is accepted from Plaintiff to accommodate his mental impairment. (AR 161.) In July 2009, a DART competitive employment evaluation indicated that Plaintiff was not currently capable of competitive employment without support from DART. (AR 163.) The evaluation indicated that Plaintiff had difficulty discerning a situation and making an appropriate decision. (AR 163.) The evaluation also stated that Plaintiff needed help with schedules, assignments, and "follow through." (AR 163.)
On October 30, 2009, an initial progress report was completed by Plaintiff's job coach at DART. (AR 174.) This report indicated that Plaintiff was safe in all aspects of the job, he was learning quickly, but he was easily distracted and would stop working to talk. (AR 174.) A November 30, 2009, report completed by Plaintiff's job coach indicated that Plaintiff was becoming "more safety minded each week" and he was learning "what to do in what order." (AR 173.)
A December 15, 2009, progress report indicated that Plaintiff needed to "stop missing Mondays." (AR 172.) A January 28, 2010, report from the job coach stated that Plaintiff was "making good progress," but he needed to "make it to work on Mondays." (AR 171.) On April 30, 2010, Plaintiff's job coach reported that Plaintiff needed to improve on his ability to arrive at work on time. (AR 167.) On July 29, 2010, it was reported that Plaintiff did well with safety issues, had done a "very good" job of learning the schedule and the tasks of the job, but still needed improvement in his ability to "arrive [at] work on time." (AR 162.)
On August 6, 2010, a "Subsidized Employee Evaluation" of Plaintiff's work performance was completed. (AR 158-161.) The form was signed by a case manager and indicated that Plaintiff could not do the same job for another employer without accommodation:
[Plaintiff] has prov[en] himself to be a hard worker but absolutely needs the accommodation we provide. [Plaintiff] is very unsure of himself when it comes to decision making and relies heavily on the direction of his job coach. He seems to have difficulty with cause and effect and how this influences positive decision making. (AR 160.) The evaluation also stated that the DART program "performs a study twice a year" on Plaintiff to determine his level of work productivity, and that his rate of pay is commensurate with his productivity. (AR 161.) The evaluation stated that Plaintiff "is currently working at 83 percent productivity and is earning $7.23/hr," even though the prevailing wage in the community for grounds work is $8.66 per hour. (AR 161.)
C. Administrative Proceedings
The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 50, 60-62, 69-71.) On August 11, 2010, Plaintiff appeared and testified at a hearing conducted by ALJ Jeffery A. Hatfield. (AR 21-44.)
A vocational expert ("VE") testified that Plaintiff's current work in the DART program constitutes an accommodated work environment. (AR 37.) The VE identified several accommodations furnished by DART including a job coach, transportation, and monitoring of tardiness and absenteeism. (AR 37.) The VE testified that Plaintiff had difficulties with tardiness and absenteeism and that he was given leeway within the DART program. The VE also acknowledged that "the pace of work is slower than a competitive rate." (AR 37.) The ALJ asked the VE to consider a hypothetical person who was limited to the following types of job tasks: simple, routine, and repetitive tasks which would permit only occasional decision making and the exercise of judgment and would only involve superficial non-confrontational, non-arbitration and non-negotiation types of activities, but may involve frequent contact with the public and co-workers. (AR 38.) The VE testified that there was work that would accommodate those limitations that a hypothetical person could perform such as laundry laborer, DOT 361.685-018, hand packager, DOT 920.587-018, and cleaner, DOT 919.687-014.
Plaintiff's representative questioned the VE regarding the DART accommodations and how these accommodations would affect Plaintiff's ability to perform the jobs identified by the VE in response to the ALJ's hypothetical. (AR 42-43.) Plaintiff's representative asked the VE whether, based on the DART case manager's August 6, 2010, report, Plaintiff would be able to perform the jobs identified by the VE. (AR 42.) The VE indicated that if Plaintiff needed the accommodations offered by DART, as the DART case manager stated in her August 6, 2010, report, then Plaintiff would not be able to perform the jobs identified by the VE. (AR 42.)
On August 20, 2010, the ALJ issued a decision finding that Plaintiff is not disabled, as defined by the Social Security Act. (AR 11-17.) Specifically, the ALJ found that Plaintiff (1) has not engaged in substantial gainful activity since March 18, 2009, the date of application; (2) has a severe impairment of borderline intellectual functioning; (3) does not have an impairment or combination of impairments that meets or equals a listed impairment set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) has the RFC to perform a full range of medium work; ...