JAMES P. DONOHUE, Chief Magistrate Judge.
Plaintiff Franklin B. Shaw appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") that denied his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court recommends that the Commissioner's decision be REVERSED and the case be REMANDED for further administrative proceedings.
Plaintiff is a 54-year-old man with a 10th-grade education and a GED. Administrative Record ("AR") at 39, 474. Plaintiff has worked short-term jobs in the past, but the jobs identified did not constitute either "substantial gainful activity" or "past relevant work," as defined in the regulations. See AR at 449, 459. Plaintiff has spent much of his adult life incarcerated. See AR at 624.
On January 12, 2010, Plaintiff protectively filed a claim for SSI payments, alleging an onset date of September 9, 2009.
The Commissioner denied Plaintiff's claim initially and on reconsideration. AR at 49-52, 57-58. Plaintiff requested a hearing, which took place on December 22, 2011. AR at 30-46. On January 20, 2012, the ALJ issued a decision finding Plaintiff not disabled. AR at 10-24. Plaintiff's administrative appeal of the ALJ's decision was denied by the Appeals Council, AR at 1-4, making the ALJ's ruling the "final decision" of the Commissioner as that term is defined by 42 U.S.C. § 405(g). Plaintiff sought judicial review, and the U.S. District Court for the Western District of Washington previously reversed the ALJ's decision and remanded for further administrative proceedings. AR at 538-53.
On December 17, 2014, a different ALJ held a hearing. AR at 466-500. On June 5, 2015, the ALJ found Plaintiff not disabled. AR at 446-60. On September 24, 2015, Plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. 1, 3.
Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.
The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). The Court may find that this occurs when:
Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that erroneously rejected evidence may be credited when all three elements are met).
As the claimant, Mr. Shaw bears the burden of proving that he is disabled within the meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment which has lasted, or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if his impairments are of such severity that he is unable to do his previous work, and cannot, considering his age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b).
When the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant's past relevant work to determine whether he can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform his past relevant work, he is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.
On June 5, 2015, the ALJ found:
AR at 449-460.
The principal issues on appeal are:
Dkt. 11 at 2.
At step three of the sequential evaluation of disability, the ALJ considers whether one or more of the claimant's impairments meets or equals an impairment listed in Appendix 1 to Subpart P of the regulations. The Listing of Impairments describes specific impairments of each of the major body systems "which are considered severe enough to prevent a person from doing any gainful activity." Tackett, 180 F.3d at 1099. If a claimant meets or equals a listing, the claimant is found per se disabled without further inquiry.
Each listing sets forth the "symptoms, signs, and laboratory findings" that must be established in order for claimant's impairment to meet the listing. Tackett, 180 F.3d at 1099. The listing at issue in this case has three requirements:
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C.
The ALJ found that Plaintiff satisfied the second and third prongs of Listing 12.05C, but did not satisfy the first prong because the record did not demonstrate current significant limitations in the adaptive functioning skills (namely communication, self-care, home living, work, leisure, health, and safety), and because the only evidence about his deficits in adaptive functioning prior to the age of 22 is his own uncorroborated testimony about his special education history and poor academic performance. AR at 451-52. The ALJ also noted that Plaintiff's IQ score was obtained after his 22nd birthday, and found that his marginal work history was primarily caused by his incarceration history. AR at 452.
Plaintiff challenges the ALJ's findings as to Listing 12.05C on a number of grounds. First, Plaintiff argues that the ALJ erred in finding that the timing of his IQ score was relevant (AR at 452), because Listing 12.05C does not require that a qualifying IQ score date to the developmental period. Dkt. 11 at 3. Plaintiff is correct; the Court finds that this portion of the ALJ's findings is not relevant to determining whether Plaintiff meets Listing 12.05C.
Second, Plaintiff argues that the ALJ erred in assuming that his marginal work history was due to his incarcerations, rather than impairment-related difficulties. Dkt. 11 at 4. Plaintiff points to earnings records showing that when not incarcerated, he did attempt to work, even if his earnings were minimal. Id. The Commissioner reiterates the ALJ's finding, but does not explain why it was reasonable for the ALJ to assume that Plaintiff's incarceration history was the primary explanation for his minimal earnings. Dkt. 12 at 4. It is also not clear how this finding supports the conclusion that Plaintiff did not have deficits in adaptive functioning prior to age 22. Plaintiff's recurring criminal behavior as an adult does not necessarily bear on his functioning prior to that time, and it does not necessarily imply that he was without functional deficit as an adult, either.
Third, Plaintiff cites his self-reports regarding his leaving high school without graduating, his special education history, and the process by which he eventually obtained his GED as evidence supporting a finding of deficits in adaptive functioning. Dkt. 11 at 4 (referencing AR at 153, 261, 359, 489); Campbell v. Astrue, 2011 WL 444783, at *17 (E.D. Cal. Feb. 8, 2011) (indicating that deficits in adaptive functioning can be inferred from evidence showing attendance in special education classes, dropping out of high school, academic difficulties, and low-skilled work history). The Commissioner argues that Plaintiff's uncorroborated statements are insufficient to establish the facts asserted, because the ALJ discounted the credibility of Plaintiff's self-reports. Dkt. 12 at 4. But courts have found "circumstantial evidence" such as a claimant's self-reports sufficient to establish the existence of deficits during the developmental period, even where the ALJ has discounted a claimant's credibility. See, e.g., Jones v. Colvin, ___ F. Supp. 3d ___, 2016 WL 781930, at *4-7 (D. Or. Feb. 29, 2016); Caballero v. Comm'r of Social Sec. Admin., 2014 WL 4163841, at *1, *8 (E.D. Cal. Aug. 20, 2014).
In light of Plaintiff's testimony describing an educational history consistent with deficits in adaptive functioning,
Accordingly, the Court recommends that on remand the ALJ further develop the record to obtain Plaintiff's educational records to determine whether Plaintiff satisfies the first prong of Listing 12.05C. See, e.g., Whiteside v. Colvin, 2013 WL 5373040, at *7 (E.D. Wash. Sept. 25, 2013) (remanding for further development of the record regarding a claimant's special education history). Because the record requires further development regarding the extent of Plaintiff's deficits in adaptive functioning prior to age 22, further proceedings, rather than a finding of disability, is the proper remedy.
For the foregoing reasons, the Court recommends that this case be REVERSED and REMANDED to the Commissioner for further proceedings not inconsistent with the Court's instructions. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit by no later than
This Report and Recommendation is not an appealable order. Thus, a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge acts on this Report and Recommendation.