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Morgan-Gomez v. Colvin

United States District Court, Ninth Circuit

December 20, 2013

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


ALKA SAGAR, Magistrate Judge.



On January 18, 2013, Plaintiff Michele S. Morgan-Gomez ("Plaintiff") filed a Complaint, pursuant to 42 U.S.C. §§ 405(g) and 1383(c) (Docket Entry No. 3). The Complaint seeks to reverse the decision of the Commissioner of the Social Security Administration ("Commissioner" or "Defendant") denying Plaintiff's applications for a period of disability, disability insurance benefits, and supplemental security income. (Compl. 1-2.) The Complaint requests the Court to award benefits or, in the alternative, remand the matter for a new hearing. (See id. at 2-3.) On August 1, 2013, Defendant filed an Answer to the Complaint (Docket Entry No. 13) and a Certified Administrative Record ("AR") (Docket Entry No. 14). On August 23 and August 27, 2013, respectively, the parties consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c) (Docket Entry Nos. 17, 18). On October 17, 2013, the parties filed a Joint Stipulation for Disposition ("Joint Stip.") (Docket Entry No. 23). For the reasons stated below, the decision of the Commissioner denying benefits is REVERSED and this matter is REMANDED to the Commissioner for further administrative action consistent with this Order.



On July 9, 2009, Plaintiff filed applications for a period of disability, disability insurance benefits, and supplemental security income, alleging a period of disability beginning on November 6, 2006. (AR 138-41, 142-49.) On September 26, 2009, the Commissioner issued an initial denial of Plaintiff's applications. (Id. at 69-73.) On March 11, 2010, the Commissioner denied Plaintiff's applications upon reconsideration. (Id. at 76-81.) On May 6, 2010, Plaintiff requested a de novo hearing before an Administrative Law Judge ("ALJ"). (Id. at 82-84.)

On June 2, 2011, ALJ Joseph D. Schloss conducted a hearing in this matter in San Bernardino, California. (Id. at 37-64.) At the hearing, Plaintiff, represented by counsel, appeared and testified. (Id. at 37, 43-58.) Moreover, William Debolt, a board-certified neurologist who did not examine Plaintiff, and Sandra Fioretti, a vocational expert, both testified at the hearing as well. (Id. at 30, 37, 39-44, 47, 58-61.) On August 10, 2011, the ALJ issued a decision unfavorable to Plaintiff. (Id. at 21-32.)

On October 6, 2011, Plaintiff requested that the Appeals Council review the ALJ's decision. (Id. at 17-19.) On October 26, 2012, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision final. (Id. at 1-3.) On January 18, 2013, Plaintiff filed her Complaint in this Court, seeking to reverse the ALJ's decision. (Compl. 1-3.) The parties stipulate that Plaintiff's initiation of this civil action was timely and that the Court has jurisdiction to review the final decision of the Commissioner. (Joint Stip. 3.)



A. Plaintiff's Allegations During The Administrative Proceedings

When Plaintiff applied for benefits, she asserted that she was disabled because she had "[e]pilepsy, grand-mal seizures, memory loss, asthma, [and] migraines." (AR 69.) At the hearing, she testified about each of these purported conditions, and also asserted that she had anxiety. (See id. at 40 (seizures); id. at 45, 50-51, 54, 55 (memory loss); id. at 55-56 (migraines); id. at 57-58 (anxiety).) With regard to Plaintiff's alleged memory loss, she claimed that she had difficulty remembering several things, including the obligation to take her seizure medication and the dates on which she had certain seizures. (See id. at 45, 50-51, 54, 55.) Although Plaintiff did not argue before the ALJ that she was disabled because she met the Commissioner's listing for mental retardation, (see id. at 37-64 (transcript of administrative hearing)), Plaintiff raised the issue before the Appeals Council. (See id. at 223-24; see infra Parts IV, VII.A (discussing the effect of meeting the listing for mental retardation).) In the Joint Stip. filed by the parties in this civil action, Plaintiff again asserts that she is disabled because her impairments met the Commissioner's listing for mental retardation. (See Joint Stip. 6-9, 18.)

B. Dr. Taylor's Report

On an unspecified date, Dr. Clifford Taylor, a licensed clinical psychologist, examined Plaintiff at the request of the California Department of Social Services. (See AR 273, 278.) On August 28, 2009, Dr. Taylor issued a report summarizing that evaluation. (Id. at 273-78.) According to the report, Dr. Taylor subjected Plaintiff to several tests including, inter alia, the Wechsler Adult Intelligence Scale, Fourth Edition ("WAIS-IV"), and the Wechsler Memory Scale, Third Edition ("WMS-III"). (See id. at 276-77.)

The WAIS-IV has a "full scale IQ score, " which is comprised of four composite scores: verbal comprehension, perceptual reasoning, working memory, and processing speed. (See id. at 276; Press Release, Pearson Educ., Inc., Wechsler Adult Intelligence Scale, Fourth Edition Now Available from Pearson (Aug. 28, 2008), Here, Dr. Taylor concluded that Plaintiff had a verbal comprehension score of 72 (borderline classification), a perceptual reasoning score of 86 (low average classification), a working memory score of 63 (borderline classification), a processing speed score of 71 (borderline classification), and a full scale IQ score of 70 (borderline classification). (AR 276.) After administering the WMS-III on Plaintiff, Dr. Taylor concluded that Plaintiff's score "plac[ed] her in the extremely low range." (Id. at 276-77.) Dr. Taylor also opined that "[Plaintiff's] delayed auditory memory was assessed to be in the low range as evidenced by an Auditory Delayed Subtest Composite score... [from] the [WMS-III]. Her sustained concentration was poor as she could repeat only 3 digits backward. Her long-term memory was intact for events and situations." (Id. at 276.)

C. Dr. Amado's Report

On September 9, 2009, Dr. H. Amado, a physician who did not examine Plaintiff, rendered an opinion after evaluating Dr. Taylor's report and other evidence concerning Plaintiff's purported impairments. (See AR 282-92.) Dr. Amado concluded that there was "[i]nsufficient evidence to substantiate the presence [of impairments meeting or equaling the listing for mental retardation]." (See AR 285.) Dr. Amado reasoned that Plaintiff had "no [history of] mental health care, ... no history of special education services in school, and no [Drug Addiction and/or Alcoholism][1] involvement." (Id. at 292.) Dr. Amado also opined that there was a "likely suppression of [the full scale IQ score] by very low [working memory/processing speed scores] that were commensurate with [her WMS-III] scores." (Id. at 292; see also id. at 276 (Dr. Taylor's opinion provides a key for these abbreviations).) Dr. Amado concluded that "[Plaintiff's] [m]ental allegations are credible but not quite at listing levels." (Id. at 292.)

D. Dr. Debolt's Testimony

Dr. Debolt reviewed Plaintiff's medical records and testified at the administrative hearing. (See AR 30, 37.) During Dr. Debolt's testimony, he briefly addressed Dr. Taylor's report: "[Plaintiff] alleges that there is some memory problems [sic], but [Dr. Taylor's] psychological testing... did not confirm that. So that in my opinion, she does not meet the listing for neurological conditions nor psychiatric conditions." (Id. at 41.) The remainder of Dr. Debolt's testimony addressed Plaintiff's alleged seizures, asthma, and migraines. (See id. at 39-44, 47.)



"To qualify for disability benefits, a claimant must show that a medically determinable physical or mental impairment prevents [him or] her from engaging in substantial gainful activity[, ][2] and that the impairment is expected to result in death or to last for a continuous period of at least twelve months." Reddick v. Chater , 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must "render[] the claimant incapable of performing the work [he or she] previously performed and... of performing any other substantial gainful employment that exists in the national economy." Tackett v. Apfel , 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step sequential inquiry. 20 C.F.R. §§ 404.1520, 416.20. The steps are:

1. Is [the] claimant presently working in a substantially gainful activity? If so, then the claimant is not disabled within the meaning of the Social ...

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