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Holt v. Berryhill

United States District Court, W.D. Washington

April 5, 2017

TONY HOLT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.


          JAMES P. DONOHUE Chief United States Magistrate Judge

         Plaintiff Tony Holt appeals the final decision of the Commissioner of the Social Security Administration (“Commissioner”) which denied in part 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 Commissioner's decision is REVERSED and this case is REMANDED for an award of benefits.


         At the time of plaintiff s first administrative hearing, plaintiff was fifty-two years old. Administrative Record (“AR”) at 50. He is currently fifty-seven years old, and has a high school education. AR at 50. Plaintiff testified that he worked for the railroad as a laborer when he was approximately twenty years old, worked as a dishwasher in a restaurant for a short period of time in his thirties, and did some part-time work as a server in an adult family home in his forties. AR at 1282-85. Plaintiff has had no work amounting to substantial gainful activity within the last fifteen years. AR at 22, 2023, 2028.

         On September 24, 2009, plaintiff filed a claim for SSI payments, and his amended alleged onset date is the date of filing. AR at 55, 125. Plaintiff asserts that he is disabled due to borderline intellectual functioning, depression, anxiety, knee pain, diabetes, thyroid problems, kidney disease, and heart disease. AR at 98, 1288, 1292. The Commissioner denied plaintiffs claim initially and on reconsideration. AR at 20. Plaintiff requested a hearing, which took place on November 15, 2011. AR at 43-75. On December 6, 2011, the ALJ issued a decision finding plaintiff not disabled and denied benefits based on her finding that plaintiff could perform a specific job existing in significant numbers in the national economy. AR at 17-33. The Appeals Council denied plaintiffs request for review, AR at 1-5, making the ALJ's ruling the “final decision” of the Commissioner as that term is defined by 42 U.S.C. § 405(g).

         Plaintiff appealed to this Court. AR at 1376-83. In October 2013, the Court granted the Commissioner's motion to remand the case for further evaluation of the medical opinion evidence. AR at 1385-89. Plaintiff argued that he meets Listing 12.05(C), and was therefore entitled to an award of benefits. AR at 1385. The Court found that although it did appear that plaintiff met the first two requirements of the listing, on remand the ALJ needed to further develop the record and re-evaluate whether plaintiff satisfies all the requirements of Listing 12.05(C). AR at 1389. The Court noted that plaintiffs brief did not address the final requirement of Listing 12.05(C), i.e., whether plaintiff had significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested before the age of 22. AR at 1389. The Court noted that “because plaintiff does not address this requirement, this Court is left with no basis to conclude that this final requirement has been satisfied.” AR at 1389.

         A second administrative hearing was held on July 23, 2014. AR at 1251-1314. During that administrative hearing, plaintiff testified that he was enrolled in special education classes in school. AR at 1302. Plaintiff testified that he was “even picked up from my home here in Tacoma and taken to the grounds of Western State Hospital to a - it was like a school because they called it Child Treatment and Study Center.” AR at 1303. He testified that he attended special education classes at the Western State Hospital “for about three years and then my mom…” AR at 1303. At this point, plaintiffs counsel interrupted his response and the ALJ indicated that “we've got to get moving” and “get on to some other stuff.” AR at 1303. Thus, no further questioning was conducted about plaintiffs educational background and special education courses.

         On January 13, 2015, the ALJ issued a decision again finding that plaintiff is not disabled. AR at 1221-43. With respect to Listing 12.05(C), the ALJ found that plaintiffs performance IQ score of 70 was not valid. AR at 1231[2] This Court again reversed that decision and remanded for further proceedings in August 2015. AR at 2225. Specifically, the Court held that the ALJ erred by finding that plaintiffs IQ score of 70 was invalid, and that “the record also shows that he has a physical or other mental impairment imposing an additional significant work-related limitation” as demonstrated by the ALJ's finding at step two that plaintiff had several other physical and mental severe impairments. AR at 2219. However, the Court found that “while the record is clear with respect to these two requirements of the Listing, it is unclear as to the third requirement: that Mr. Holt's deficit manifested itself before age 22.” AR at 2219.[3]

         A third hearing before an ALJ was held on April 18, 2016. AR at 2146-2171. At the hearing, the ALJ and plaintiffs counsel agreed that the third requirement of Listing 12.05(C) was “the only issue” left to resolve on remand. AR at 2149-50. Plaintiffs counsel explained that “we have not been able to get any school records back that far. They just don't keep them back that far it's been our experience. And what we found out in Mr. Holt's case.” AR at 2151. The ALJ opined that “if the District Court in this particular case had felt that there was strong enough evidence of that onset prior to age 22 they would have just awarded benefits. Because they certainly did reverse the prior rulings as to the IQ testing.” AR at 2152.

         In June 2016, the ALJ issued a decision finding that plaintiff was not disabled prior to January 23, 2014, the date plaintiff suffered a heart attack and his physical condition and functional capacity deteriorated. However, the ALJ found that plaintiff became disabled on the date of his heart attack. AR at 2019-30. With respect to the issue of whether plaintiff met Listing 12.05(C) prior to his heart attack, the ALJ made the following findings:

Turning back to listing 12.05, the District Court held that the first two requirements of 12.05C have been met; that is, the claimant has a valid IQ score of 70 and additional physical and mental impairments imposing additional significant work-related limitations. The District Court expressly declined to find that the third requirement was met since the evidence was unclear that the claimant's intellectual deficits manifested before age 22. The District Court remanded the case for further administrative proceedings to develop evidence of intellectual deficits prior to age 22. Unfortunately, the claimant provided no further evidence on that point, so I am left with the same quandary of insufficient evidence that the District Court was faced with. As noted by the District Court, the record regarding the claimant's special education and childhood head injury is skimpy at best. Hence, the evidence does not show that the severity of his borderline intellectual functioning satisfies the third requirement of section 12.05C, and I am continuing with the sequential evaluation. . . .
As noted, although I accept the claimant's IQ score of 70, the evidence does not establish that his borderline intellectual functioning satisfies the requirements of 12.05C as the claimant provided no further evidence on whether his intellectual deficits manifested prior to age 22. From a functional standpoint, his treatment history, his performance on mental status examinations, and other inconsistencies in the record as set forth in Judge Dantonio's decision do not support the claimant's allegations of incapacitating social and/or cognitive deficits.

AR at 2025-26. Thus, the ALJ found that prior to January 23, 2014, there were other jobs existing in significant numbers in the national economy that plaintiff could perform. AR at 2028-30.

         When the Appeals Council did not assume jurisdiction of this case, the ALJ's decision became the final decision of the Commissioner after the Court's remand. See 20 C.F.R. § 416.1484(a). Plaintiff now seeks review of the ALJ's June 2016 decision that plaintiff was not disabled for the closed period from September 24, 2009 to January 22, 2014. Dkt. 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:

(1) the ALJ has failed to provide legally sufficient reasons for rejecting the claimant's evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled if he considered the claimant's evidence.

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. Holt 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).[4] If he is, disability benefits are denied. If he is not, the Commissioner proceeds to step two. At step two, the claimant must establish that he has one or more medically severe impairments, or combination of impairments, that limit his physical or mental ability to do basic work activities. If the claimant does not have such impairments, he is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe impairment, the Commissioner moves to step three to determine whether the impairment meets or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d). A claimant whose impairment meets or equals one of the listings for the required twelve-month duration requirement is disabled. Id.

         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 ...

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