RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
Plaintiff, Amor J. Blacktongue, brings this action pursuant to 42 U.S.C.
On March 31, 2011, Mr. Blacktongue filed an application for Disability Insurance Benefits (DIB) and on July 13, 2011, filed an application for Supplement Security Income (SSI). Tr. 26, 132-43, 323-31. Both applications alleged disability commencing on June 5, 2009. Id. Mr. Blacktongue's applications were denied initially and upon reconsideration. Tr. 26. A hearing was held before Administrative Law Judge (ALJ) Glenn G. Meyers on September 30, 2014. Tr. 415-51. Mr. Blacktongue was represented by counsel, Steven Knaphus.
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 are 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (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. Blacktongue 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 medically determinable physical or mental impairment which can be expected to result in death or which has lasted, or is expected to last, for a continuous period of not less than 12 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" (SGA). 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,
Utilizing the five-step disability evaluation process,
Tr. 26-40.
Mr. Blacktongue claims the ALJ erred in failing to find that he met or equaled Listing 12.05C and was therefore disabled. Dkt. 10 at 1. Mr. Blacktongue further argues the ALJ erred by adopting the opinions of nonexamining psychologists and rejecting generally consistent opinions from two examining psychologists. Id. Mr. Blacktongue also contends the ALJ failed to properly consider all of the evidence and all of his limitations in assessing the RFC. Id. Mr. Blacktongue contends this matter should be remanded for a finding of disability and payment of benefits. Id.
Mr. Blacktongue argues the ALJ erred in failing to find he met or equaled Listing 12.05C, Intellectual Disability, and was therefore disabled. Dkt. 10 at 1, 4-8. The Court agrees.
At step three of the disability evaluation process, the ALJ must evaluate the claimant's impairments to see if they meet or medically equal any of the impairments set forth in the Listings. See 20 C.F.R. § 404.1520(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. Pt. 404, Subpt. P. App.1. If any of the claimant's impairments meet or medically equal a listed impairment, he or she is found disabled without further inquiry. Id. The burden of proof is on the claimant to establish he or she meets or equals any of the impairments in the Listings. See Tackett, 180 F.3d at 1098. Each listing describes the "symptoms, signs, and laboratory findings" the claimant must establish
The introductory paragraph of Listing 12.05 provides that "[the subject disorder] 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." See 20 C.F.R. Pt. 404 Subpt. P, App. 1, § 12.05C (2011) (current version at 20 C.F.R. Pt. 404 Subpt. P, App. 1, § 12.05C (2017)).
Neither party disputes that Mr. Blacktongue meets the second and third requirements of the listing.
Mr. Blacktongue argues the ALJ erred in focusing on his current adaptive functioning because the relevant question under Listing 12.05C is whether "deficits in adaptive functioning initially manifested during the developmental period" i.e. prior to age 22. Dkt. 10 at 7. Mr. Blacktongue further argues that there is sufficient evidence of adaptive deficits during the developmental period to satisfy Listing 12.05C. Id. The Commissioner argues the ALJ properly considered Mr. Blacktongue's current functioning in concluding that "[w]hile Plaintiff may have had some deficits in functioning initially manifested prior to age 22, those deficits were not at listing-level severity, i.e., they were not disabling." Dkt. 19 at 7. The Court agrees with Mr. Blacktongue.
First, as the Court noted in Evans v. Colvin, No. 13-5436, ECF No. 27, page 11 (W.D. Wash. Jan. 30, 2014) the plain language of Listing 12.05 "focuses on whether deficits in adaptive functioning existed during the developmental period, without reference to current functioning." Other courts in the Ninth Circuit have tended to follow this interpretation of Listing 12.05C. See Pedro, 849 F.Supp.2d at 1014 (finding the ALJ erred in concluding that because claimant can now drive, live independently, manage her own hygiene, and care for her children, she is not disabled because "the record contains evidence demonstrating deficits in adaptive functioning prior to age 22" and "[t]he listing does not require more."); Abel v. Colvin, No. 12-cv-06025, 2014 WL 868821, at *4 (W.D. Wash. 2014) ("Although plaintiff later was able to work at a variety of low-skilled jobs, the introductory paragraph of Listing 12.05 does not consider plaintiff's subsequent employment, but rather her level of functioning during her early years — before age 22."); Thresher v. Astrue, 283 Fed.Appx. 473, 474 (9th Cir. 2008) ("the evidence will support a determination that ... [the claimant] ... does come within ... [Listing 12.05C] ... because two of her IQ scores were in the 60 through 70 range, that mental condition began before she was 22 years of age, and she does have an additional physical impairment." (emphasis added)); Campbell v. Astrue, No. 09-cv-465, 2011 WL 444783, at *17 (E.D. Cal. Feb. 8, 2011) (concluding that "deficits in adaptive functioning" refer to deficits occurring during the developmental period such as "attendance in special education classes, dropping out of high school prior to graduation, difficulties in reading, writing or math, and low skilled work history").
Second, the Court agrees with Mr. Blacktongue that there is sufficient evidence of adaptive deficits during the developmental period to satisfy Listing 12.05C. "The Diagnostic & Statistical Manual of Mental Disorders describes `adaptive functioning' as `how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, socioeconomic background, and community setting.... Problems in adaption are more likely to improve with remedial efforts than is the cognitive IQ, which tends to remain a more stable attribute.'" Pedro, 849 F.Supp.2d at 1011 (quoting American Psychiatric Ass'n Diagnostic & Statistical Manual of Mental Disorders 42 (4th ed.2000, text revision) (hereinafter DSM-IV)). To demonstrate deficits in adaptive functioning during the developmental period a claimant may rely on circumstantial evidence such as "attendance in special education classes, dropping out of high school prior to graduation, difficulties in reading, writing or math, and low skilled work history." Campbell, 2011 WL 444783, *17; accord Abel, 2014 WL 868821 *3-6; accord Maresh v. Barnhart, 438 F.3d 897, 900 (8th Cir. 2006) (onset before
Finally, even if it were appropriate to consider Mr. Blacktongue's current functioning, his ability to work at primarily low skilled, manual labor jobs
Under the circumstances, the Court finds there is sufficient evidence to establish that Mr. Blacktongue had deficits in adaptive functioning initially manifested during the developmental period, and, therefore, that he satisfied the requirements of Listing 12.05C. No further proceedings would be useful because the record is fully developed and establishes Mr. Blacktongue should have been found disabled at step three. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (holding that "the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). Accordingly, remand for an award of benefits is appropriate in this case.
For the foregoing reasons, the Commissioner's final decision is