United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
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.)
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.
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).
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.
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-paced and 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.
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.
The Step Three Determination and Listing 12.05B
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.
12.05 sets forth the requirements for intellectual disability
(formerly known as “mental retardation” under the
old rules and as “intellectual disorder” under
the new 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.”).
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.