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Victor Vieira v. Carolyn W. Colvin

March 21, 2013

VICTOR VIEIRA, PLAINTIFF,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's application for Supplemental Security Income benefits under Title XVI of the Social Security Act ("Act").*fn1 In his motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred by: (1) finding that plaintiff did not meet the requirements of Listing 12.05C; (2) failing to consider plaintiff's back impairment; (3) improperly substituting her own "lay opinion" for that of examining physician Dr. Hamilton; (4) improperly relying on the opinions of non-examining physicians in rendering her Residual Functional Capacity ("RFC") assessment; and (5) providing incomplete hypothetical questions to the Vocational Examiner ("VE"). (See generally, Mot. for Summ. J., Dkt. No. 11.)

Defendant filed a cross-motion for summary judgment and opposition to plaintiff's motion. (Opp'n, Dkt. No. 12.) Plaintiff filed reply briefing in support of his motion. (Reply, Dkt. No. 13.) For the reasons stated below, the court grants plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands this case for an award of benefits.

I. BACKGROUND

A. Procedural History*fn2

Plaintiff was born on June 23, 1962, and filed an application for disability insurance benefits and supplemental security income on August 29, 2008, alleging a disability onset date of August 30, 2007.*fn3 (Administrative Transcript ("AT") 9, 21.) The Social Security Administration denied plaintiff's application on December 10, 2008, and upon reconsideration on May 22, 2009. (AT 74-79.) Plaintiff filed a request for a hearing on July 21, 2009 (AT 93), and the ALJ conducted a hearing on May 4, 2010. Plaintiff, who was represented by an attorney, testified at the hearing. (AT 33-63.)

In a decision dated July 19, 2010, the ALJ denied plaintiff's application for benefits based on a finding that, while plaintiff is not capable of performing his past relevant work as a truck driver and warehouse worker, plaintiff is capable of performing work that exists in significant numbers in the national economy, including work as a janitor, dining room attendant, and factory helper. (AT 9-23.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-3.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since August 30, 2007, the alleged disability onset date. (AT 11.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "insulin dependent diabetes mellitus, hypertension, obesity, depression, probable borderline intellectual functioning, and alcohol dependence." (Id.)

At step three, the ALJ determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 1. (AT 13.) In particular, the ALJ found that plaintiff's impairments did not meet Listing 12.05C because "the record does not support a conclusion that the claimant has mild mental retardation, and there is no evidence of adaptive deficits or intellectual deficits manifested prior to age 22. Thus, the requirements of that listing are not met or equaled." (AT 14.)

The ALJ further determined that plaintiff has the RFC to perform "medium work," "except that he can only occasionally bend, crouch, and kneel. He is unable to climb ladders, ropes, or scaffolds; and should not work around dangerous machinery or at heights. He can understand, remember, and carry out one or two-step simple job instructions, interact appropriately with supervisors, co-workers and the public and he can maintain concentration, persistence and pace for simple job tasks." (AT 15.) In making this RFC determination, the ALJ found that plaintiff's statements regarding his symptoms were "not credible to the extent they are inconsistent with the above" RFC. (AT 20.) The ALJ gave "great weight" to the opinion of non-examining physician, Dr. W. Miller Logan M.D., who opined that plaintiff could perform "simple" tasks in a routine work setting.*fn4 (AT 20.) The ALJ found Dr. Logan's opinion to be consistent with evidence of claimant's limited treatment, successful use of psychotropic medication, and the record as a whole. (Id.)

At step four, the ALJ considered the VE's testimony and concluded that plaintiff was unable to perform his past work but could perform other work. (AT 21.) Based on plaintiff's ability to perform jobs that exist in significant numbers in the national economy, the ALJ found that plaintiff is "not disabled." (AT 21-22.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is: (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means 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." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)).

However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "To determine whether substantial evidence supports the ALJ's decision, [a court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion." Andrews, 53 F.3d at 1039. "If additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded." Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). "Where the Secretary is in a better position than this court to evaluate the evidence, remand is appropriate." Id. (citing McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)). However, when appropriate, the court may also in its discretion order an immediate payment of benefits. Harman v. Apfel, 211 F.3d 1172, 1177--78 (9th Cir. 2000).

III. DISCUSSION

A. The ALJ Erred In Determining That Plaintiff's Impairments Do Not Meet Or Equal Listing 12.05C

Plaintiff's first argument is that the ALJ erred in finding that plaintiff's impairments do not meet or equal the requirements of Listing 12.05C ("the Listing"). (Mot. for Summ. J. at 11-13; Reply at 2-3.) Plaintiff argues that: (1) given his scores on IQ tests administered by examining psychologist Dr. Sylvia A. Hamilton, (2) given Dr. Hamilton's determination that the scores were a "valid measure" of plaintiff's cognitive functioning, and (3) given the ALJ's finding that plaintiff has various "severe" impairments, such as obesity, plaintiff's impairments meet or equal the requirements of the Listing. (Mot. for Summ. J. at 11-13; Reply at 2-3.) Plaintiff argues that the ALJ erred in discounting Dr. Hamilton's opinion that the IQ scores were "valid." (Mot. for Summ. J. at 11-13; Reply at 2-3.) Plaintiff also argues that the valid IQ scores triggered a rebuttable presumption of a "fairly consistent IQ throughout life," such that the ALJ erred in finding the Listing was unmet given the record's lack of evidence of "manifestations prior to age 22." (Mot. for Summ. J. at 11-13; Reply at 2-3.)

In response, defendant argues that even though plaintiff's IQ scores were within the range stated within the Listing, the ALJ "properly questioned" both the validity of those scores and Dr. Hamilton's opinion that the scores were valid. Defendant also argues that the ALJ "reasonably questioned how much effort Plaintiff put forth" on his IQ tests and properly considered the scores to be somewhat contradicted given plaintiff's prior work as a truck driver and his having obtained a GED. (Opp'n at 9-10.) Defendant also argues that the ALJ properly found that plaintiff "failed to provide evidence demonstrating an onset date prior to age 22 as required by the [L]isting." (Id.)

For the reasons described below, the undersigned finds that plaintiff's arguments are well-taken.

1. Listing 12.05C

At Step Three, the ALJ asks whether the claimant's impairment or combination of impairments meets or equals an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1 ("the Listings"), and if the answer is yes, the claimant is automatically determined disabled. Lester, 81 F.3d at 828 n.5.

Listing 12.05C, 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." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. The Listing can be met by satisfying the requirements of paragraph 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."*fn5 Id. The Listing continues: "For paragraph C, we will assess the degree of functional limitation the additional impairment(s) imposes to determine if it significantly limits your physical or mental ability to do basic work activities, i.e., is a 'severe' impairment(s), as defined in §§ 404.1520(c) and 416.920(c). If the additional impairment(s) does not cause limitations that are 'severe' as defined in §§ 404.1520(c) and 416.920(c), we will not find that the additional impairment(s) imposes 'an additional and significant work-related limitation of function,' even if you are unable to do your past work because of the unique features of that work." Id.

Thus, a plaintiff meets the Listing's requirements if he: (1) has an IQ score between 60 and 70 and the evidence demonstrates or supports onset of the impairment before age 22; and (2) he has a physical or other mental impairment imposing an additional and significant work-related limitation of function (i.e., a "severe" impairment). As described below, plaintiff's IQ scores were between 60 and 70*fn6 , evidence in the record supports ...


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