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Jimenez v. Colvin

United States District Court, S.D. California

July 29, 2016

ERNESTO JIMENEZ, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER (1) GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND (2) DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

          HON. DANA M. SABRAW, UNITED STATES DISTRICT JUDGE

         This case comes before the Court on Plaintiff Ernesto Jimenez’s motion for summary judgment and Defendant Acting Commissioner Carolyn Colvin’s cross-motion for summary judgment. The case was referred to Magistrate Judge Mitchell D. Dembin (“Magistrate Judge”) for a Report and Recommendation (“R&R”). The Magistrate Judge recommended that the Court grant Plaintiff’s motion and deny Defendant’s motion. Defendant thereafter objected to portions of the R&R. Having reviewed and considered the objections, the Court overrules them, adopts the R&R, and grants Plaintiff’s motion for summary judgment and denies Defendant’s cross-motion.

         I. BACKGROUND

         Plaintiff alleged that he became disabled on January 1, 2008, as a result of several medical and mental conditions that Administrative Law Judge Brenton L. Rogozen (“ALJ”) categorized as severe. Administrative Record (“AR”) 13, 92. In 2009, when Plaintiff was 26 years old, his examining physician, Dr. Ted Shore, found that Plaintiff had a full scale IQ of 63, a verbal IQ of 65, a performance IQ of 67, and diagnosed him with a learning disorder and mild mental retardation.[1] AR 17. Dr. Shore noted that Plaintiff was capable of work involving simple repetitive tasks. Id. The ALJ credited Dr. Shore’s report because it was supported by objective findings, observations of the consultative examiner, and the record as a whole. AR 18. In 2011, Plaintiff’s orthopedic surgeon, Dr. Vincent R. Bernabe, diagnosed Plaintiff with bilateral pes planus (“flatfoot”), chondromalacia patella of the right knee, patellar tendonitis of the right knee, Achilles tendonitis of the right knee, and a right foot sprain. AR 19-20. Dr. Bernabe determined that Plaintiff was limited to pushing, pulling, lifting and carrying 50 pounds occasionally and 25 pounds frequently. AR at 20. Dr. Bernabe also found that Plaintiff could walk and stand for six hours per day. Id. The ALJ credited Dr. Bernabe’s assessment because it was supported by objective findings, determinations of the consultative examiner, and the record as a whole. Id. In January 2013, Plaintiff’s examining psychologist, Dr. C. Valette, reported that Plaintiff was malingering and concluded that although Plaintiff’s history indicated a learning disorder, that disorder would not impede his ability to work. AR 18-19. The ALJ accorded Dr. Valette’s opinion “little weight” because it was internally inconsistent and unsupported by the record. Id. The ALJ pointed out that Dr. Valette diagnosed a learning disorder but assigned no restriction. Id. The ALJ did not believe Plaintiff’s disorder was so de minimis as to support a finding that he has no mental restrictions. Id.

         On September 10, 2013, the ALJ issued a written decision. AR 22. In the ALJ’s report, he conducted a five-step sequential evaluation of Plaintiff.[2] AR 13 (citing C.F.R. §§ 404.1520(a) and 416.920(a)). At step one, the ALJ concluded that Plaintiff had not engaged in substantially gainful activity since claiming disability. Id. At step two, the ALJ concluded that Plaintiff’s physical impairments combined with Plaintiff’s learning disorder were severe within the meaning of the regulations. AR 13-14. At step three, the ALJ determined that Plaintiff did not meet the requirements of Listing 12.05(C) because, though Plaintiff’s IQ fell between 60 and 70, the evidence did not indicate a physical or other mental impairment imposing an additional and significant work-related limitation. AR 16. The ALJ did not address whether Plaintiff’s subaverage intellectual functioning arose during Plaintiff’s developmental period. Id. At step four, the ALJ determined that Plaintiff had the residual functioning capacity to perform his past relevant work. AR 21. Since the ALJ determined that Plaintiff was not disabled at step four, he did not reach step five. Based on his findings, the ALJ concluded that Plaintiff was not disabled. AR 22. Plaintiff appealed, and the Appeals Council declined to set aside the ALJ’s decision, rendering it the final decision of the Commissioner. AR 1.

         On May 18, 2015, Plaintiff filed the subject Complaint. Defendant answered, and thereafter the parties filed cross-motions for summary judgment. On March 7, 2016, the Magistrate Judge filed the R&R advising that the Court grant Plaintiff’s motion, deny Defendant’s motion, and remand the case for an award of benefits. R&R at 21. Defendant timely filed an objection to the R&R, and Plaintiff replied.

         II. DISCUSSION

         A. Legal Standard

         Disability is defined by the Social Security Act as the “inability to engage in any substantially gainful activity … by reason of any medically determinable physical or mental impairment … which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment must prevent the claimant, given age, experience, and work experience, from engaging in substantially gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

         The Secretary’s decision “will be disturbed only if it is not supported by substantial evidence or it is based on legal error.” Magallenes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Brawner v. Secretary of Health & Human Services, 839 F.2d 432, 433 (9th Cir. 1987)). Substantial evidence is such that a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217 (1938)). It is more than a scintilla but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). The reviewing court must examine whether there is substantial evidence to support the agency’s findings on the record as a whole. DID Bldg. Svcs., Inc. v. NLRB, 915 F.2d 490, 494 (9th Cir. 1990) (citing Universal Camera Corp v. NLRB, 340 U.S. 474, 491 (1951)). The court may not affirm simply by isolating a specific quantum of supporting evidence. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to multiple rational interpretations, the ALJ’s rational interpretation will be upheld. See Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). When evidence is inconclusive, “questions of credibility and resolution of conflicts in the testimony are functions solely of the secretary.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). A court may enter judgment affirming, modifying, remanding, or reversing the Commissioner’s decision. 42 U.S.C. § 405(g).

         B. Analysis

         Plaintiff argues the ALJ erred by finding that he did not meet the requirements of Listing 12.05, subd. (C), and requests that the Court remand for an award of benefits.[3] Pl.’s Mot. Summ. J. at 11:16, 24:8. Listing 12.05 addresses mental retardation. 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., Part 404, Subpt. P, App. 1 § 12.05 (2012). Relevant here, Listing 12.05, subd. (C), provides that the required severity of this disorder is met when the plaintiff can show: “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[.]” A claimant will meet the listing for mental retardation only if his “impairment satisfies the diagnostic criteria in the introductory paragraph” of the Listing as well as one of the four subdivisions of 12.05(A)-(D). 20 C.F.R. Pt. 404, Subpt. P, App. I § 12.00(A). Thus, to establish a disability at the third step of the sequential evaluation through Listing 12.05, Plaintiff must show that the following three prongs are satisfied: “(1) subaverage intellectual functioning with deficits in adaptive functioning initially manifested before age 22; (2) a valid IQ score of 60 to 70; and (3) a physical or other mental impairment imposing an additional and significant work-related limitation.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013).

         Defendant objects to the recommendations of the Magistrate Judge, arguing that Plaintiff has not satisfied Listing 12.05(C), there are conflicts in the record that must be resolved by the ALJ, and that the Court cannot make determinations based on the existing record. Specifically, Defendant contends that the ALJ failed to address the introductory paragraph of Listing 12.05(C), which requires a finding of significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested before age 22. This lack of analysis, according to Defendant, “warrants remand for further proceedings, not payment under Listing 12.05.” Def.’s Objs. at 5. Defendant concedes the “ALJ erred regarding the third prong of Listing 12.05(C)-Plaintiff does have a qualifying ‘additional’ work-related impairment.” Id. (emphasis added). The principal issue, therefore, is whether substantial evidence in the record supports a finding that Plaintiff’s impairment manifested itself before age 22, warranting remand for payment of benefits.

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