United States District Court, S.D. California
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.
1.
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