Watkins v. Comm'r of Soc. Sec. Admin.

• Decision Date: 31 March 2017
• Docket Number: No. CV-16-00168-PHX-DLR,CV-16-00168-PHX-DLR
• Parties: Patrick Fitzgerald Watkins, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
• Court: U.S. District Court — District of Arizona

Patrick Fitzgerald Watkins, Plaintiff, v. Commissioner of Social Security Administration, Defendant.

No. CV-16-00168-PHX-DLR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

March 31, 2017

ORDER

Plaintiff applied for supplemental security income on November 15, 2011, claiming disability since the filing date. (AR 22, 166-74.) After state agency denials, Plaintiff testified at a hearing before an Administrative Law Judge on May 16, 2014. (AR 22-41.) The ALJ issued a written decision one month later, finding Plaintiff not disabled within the meaning of the Social Security Act. (AR 15-35.) This became Defendant's final decision when the Appeals Council denied review. (AR 1-3.)

Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1.) After receipt of the administrative record (Doc. 10), the parties briefed the issues for review concerning Plaintiff's alleged mental disability (Docs. 17, 19, 22). For reasons stated below, Defendant's decision is reversed and the case remanded for an award of benefits.

STANDARD OF REVIEW

The district court reviews only those issues raised by the party challenging the Commissioner's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the decision if it is based on legal error or not supported by substantial evidence. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla but less than a preponderance, and such relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. Where "the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The court, however, reviews "only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which [she] did not rely." Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

DISCUSSION

Whether a claimant is disabled is determined using a five-step evaluation process. The claimant must show that (1) he is not currently working, (2) he has a severe impairment, and (3) his impairment meets or equals a listed impairment or (4) his residual functional capacity (RFC) precludes him from performing past work. If the claimant meets his burden at step three, he is presumed disabled and the process ends. If the inquiry proceeds and the claimant meets his burden at step four, the Commissioner must show at the fifth and final step that the claimant is able to perform other work given his RFC, age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(i)-(v).

Plaintiff has met his burden at steps one and two: he has not worked since the alleged date of disability and has severe intellectual disability, depressive disorder, psychotic disorder, and polysubstance dependence in partial remission. (AR 24-25.) The ALJ found at step three that Plaintiff's impairments do not meet or equal a listed impairment. (AR 25-28.) The ALJ then determined that Plaintiff has the RFC to perform a range of medium work limited to simple, repetitive tasks in jobs that are not fast-pacedand do not require working as a team or with the public. (AR 28-35.) Based on this RFC and testimony from a vocational expert, the ALJ determined at step four that Plaintiff is not disabled because he can perform his past job as a construction worker. (AR 36.)

Plaintiff challenges the step three determination, arguing that the ALJ erred in concluding that his intellectual disability does not meet listing 12.05B. (Doc. 17 at 8-11.) Plaintiff further argues that the ALJ erred by failing to consider certain "paragraph B" criteria in determining RFC (id. at 11-18), and by making the RFC determination without citing to supporting evidence (at 18-20). Defendant counters that the ALJ reasonably found that Plaintiff's intellectual disability does not meet the requirements of listing 12.05B (Doc. 19 at 6-10), and the RFC determination was proper and supported by substantial evidence (at 10-15). As explained below, the Court finds that the ALJ committed reversible error at step three and the case should be remanded for an award of benefits.

I. The Step Three Determination and Listing 12.05B

The listing of impairments, set forth in an appendix to the social security regulations, is comprised of various impairments to fifteen body systems. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The impairments described in the listings are considered so severe they are presumed disabling regardless of a person's age, education, or work experience. 20 C.F.R. §§ 416.920(d), 416.925(a); Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990). In order to meet a specific listing, the claimant must present evidence satisfying the diagnostic description of the impairment and any additional criteria or requirements set forth in the listing. 20 C.F.R. § 416.925(d); Young, 911 F.2d at 184.¹

Listing 12.05 sets forth the requirements for intellectual disability (formerly known as "mental retardation" under the old rules and as "intellectual disorder" under thenew ones). The listing contains an introductory paragraph setting forth the diagnostic description of the impairment as (1) significantly subaverage general intellectual functioning with (2) deficits in adaptive functioning initially manifested during the developmental period, that is, before age 22. The listing also contains four sets of criteria, subparagraphs A through D, which address the required level of severity for the condition to be presumed disabling. To meet Listing 12.05, the claimant must show that his impairments satisfy both the diagnostic description of intellectual disability in the introductory paragraph and any one of the four criteria in subparagraphs A through D. 20 C.F.R. § 416.925(c)(3) ("We will find that your impairment(s) meets the requirements of a listing when it satisfies all of the criteria of that listing, including any relevant criteria in the introduction, and meets the [twelve-month] duration requirement.").

Subparagraph B, the one at issue here, requires a valid verbal, performance, or full scale IQ of 59 or less in order for the intellectual disability to be presumed disabling. Here, Plaintiff had a full scale IQ of 56, which is extremely low according to Dr. Alysha Bundy, the state agency psychologist who administered the IQ test. (AR 411.) Plaintiff contends that the ALJ erred in concluding that the IQ score is not valid and Plaintiff had no "significant" deficits in adaptive functioning. (Doc. 17 at 9.) The Court agrees.

A. Validity of the IQ Score

The ALJ found that Plaintiff's IQ of 56 does not reflect his true cognitive functioning given evidence of his adaptive functioning such as his ability to maintain personal hygiene, perform household chores, use the telephone and public transportation, obtain a driver's license, and shop. (AR 27.) But Dr. Bundy explicitly found that the IQ score was valid despite the fact that Plaintiff could perform these routine tasks. (AR 409-11.) Indeed, the evidence the ALJ cites to show that Plaintiff can engage in routine daily activities is the report of Dr. Bundy. (AR 27, 32.)

The fact that Plaintiff can perform simple tasks and might not have significant deficits in adaptive functioning does not invalidate the results of the IQ test designed to capture his intellectual functioning, which refers to the mental capacity to learn, reason,plan, and solve problems. Courts have held that routine daily activities such as those performed by Plaintiff "are not necessarily inconsistent with [intellectual disability] and are therefore not valid grounds for rejecting an IQ score." Lewis v. Astrue, No. C-06-6608-SI, 2008 WL 191415, at *7 (N.D. Cal. Jan. 22, 2008); see Pedro v. Astrue, 849 F. Supp. 2d 1006, 1014 (D. Or. 2011) (noting that "courts have held that daily activities such as reading, driving, and cleaning are not necessarily inconsistent with mental retardation"); Schuler v. Astrue, No. CV-09-2126-PLA, 2010 WL 1443892, at *6 (E.D. Cal. 2010) (ALJ erred in rejecting validity of IQ score where the claimant functioned independently as an adult because this was not necessarily inconsistent with his mental impairment); Brown v. Sec'y of HHS, 948 F.2d 268, 270 (6th Cir. 1991) (daily activities such as using public transit, shopping, cleaning, and doing laundry are not inconsistent with a low IQ score).

The regulations require a narrative report accompanying the IQ test that "comment[s] on whether the IQ scores are considered valid and consistent with the developmental history and the degree of functional limitation." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00D6a. Dr. Bundy provided the required narrative, which addresses in detail Plaintiff's developmental history, functional limitations, and daily activities. (AR 408-14.) Dr. Bundy specifically found that Plaintiff's "cooperation and general attitude was appropriate with sufficient effort" and his "approach during the testing was adequate for evaluation purposes." (AR 410-11.) She concluded, in her professional medical opinion, that the "results of [the IQ] testing are considered valid." (AR 411.)

The ALJ may not "substitute [her] own judgment for competent medical opinion," and she "must not succumb to the temptation to play doctor and make her own independent medical findings." Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. June 13, 2006). This is particularly true where, as in this case, the examining doctor's opinion is not contradicted by another physician and the ALJ purported to give "significant weight" to the opinion because it was "consistent with the totality of themedical record." (AR 34.)

The Court concludes that the ALJ erred in substituting her own judgment for that of Dr. Bundy's, and otherwise failed to provide clear and convincing reasons for...