IN THE UNITED STATES DISTRICT COURT 

DALE JONES, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Acting Commissioner of 

Social Security, 

Defendant. 

George J. Wall 

1336 Burnside St., Suite 130 

Portland, OR 97214 

Attorney for plaintiff 

Billy J. Williams 

United States Attorney 

District of Oregon 

Janice E. Hebert 

FOR THE DISTRICT OF OREGON 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

1 - OPINION AND ORDER 

Civ. No. 3:15-cv-01064-AA 

OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 1 of 12
Leisa A. Wolf 

Special Assistant United States Attorney 

Office of the General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, WA 98104-7075 

Attorneys for defendant 

AIKEN, Judge: 

Dale Jones (plaintiff) brings this action pursuant to the Social Security Act (the Act), 42 

U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social 

Security (Commissioner). The Commissioner denied plaintiffs application for Disability 

Insurance Benefits (DIB) and Social Security Income (SSI) benefits under the Act. The 

Commissioner's decision is affirmed and the case is dismissed. 

PROCEDURAL BACKGROUND 

On October 11, 2011, plaintiff protectively filed for a period of disability and DIB and 

applied for SSI, alleging disability beginning December 31, 2001. Tr. 19. His applications were 

initially denied on March 21, 2012 and upon reconsideration on June 29, 2012. Tr. 19, 150-157, 

163-167. On October 21, 2013, a hearing was held before an Administrative Law Judge (ALJ), 

wherein plaintiff appeared with an attorney and testified. Tr. 39-92. A vocational expert (VE) 

also appeared and testified. Tr. 83-86. On November 25, 2013, the ALJ issued a decision 

finding plaintiff not under a disability from December 31, 2001 through December 31, 2006, his 

date last insured. Tr. 19-33. In addition, the ALJ found plaintiff not under a disability since 

October 11, 2011, the SSI application date. Tr. 19-33. On May 15, 2015, the Appeals Council 

denied review, rendering the ALJ' s decision final. Tr. 1-3. Plaintiff now seeks judicial review. 

Plaintiff was fifty-six years old at the time of the hearing before the ALJ. Tr. 14. He 

attended high school through tenth grade, but did not complete high school or receive his GED. 

2 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 2 of 12
Tr. 63. He worked as a dietary aide, dishwasher, loader-unloader, convenience store cashier, and 

housekeeper. Tr. 50-53, 64-69, 84-85, 251-54, 269-71. He lost jobs for various reasons 

including substance abuse, missing work, employers gomg out of business, leaving 

unsatisfactory work environments, and his criminal background. Tr. 67-69. Plaintiff alleges 

disability since December 31, 2001, due to mental health issues, knee problems, chest pains, and 

fatigue. Tr. 72, 75, 78, 82-83, 217, 219, 246. 

STANDARD OF REVIEW 

This court must affirm the Commissioner's decision if it is based on proper legal 

standards and the findings are supported by substantial evidence in the record. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. 

It means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. 

v. NL.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports 

and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 

(9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's 

interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

The Commissioner's findings are upheld if supported by inferences reasonably drawn 

from the record; if evidence exists to support more than one rational interpretation, the court 

must defer to the Commissioner's decision. Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 

1190, 1193 (9th Cir. 2004). 

COMMISSIONER'S DECISION 

The initial burden of proof rests upon the claimant to establish disability. Howard v. 

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, a claimant must demonstrate 

3 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 3 of 12
an "inability to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected ... to last for a continuous 

period of not less than 12 months .... " 42 U.S.C. § 423(d)(l)(A). 

The ALJ evaluated plaintiffs allegation of disability pursuant to the relevant five-step 

sequential process. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 

416.920. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity 

since the alleged onset date, December 31, 2001. Tr. 21; 20 C.F.R. §§ 404.1571, 416.971. 

At step two, the ALJ found that plaintiff had the severe impairments of arthropathies of 

the low back and left knee, cognitive disorder, anxiety disorder, and alcohol abuse. Tr. 22; 20 

C.F.R. §§ 404.1520(c), 416.920(c). The ALJ found that plaintiffs remote head injury, and left 

upper extremity condition, heart problems, occasional chest pain, gastroesophogeal reflux 

disease, and dental decay were not severe. Tr. 22. 

At step three, the ALJ found that plaintiffs medically severe impairments did not meet or 

equal one of a number of listed impairments that the Commissioner acknowledges are so severe 

as to preclude gainful activity. Tr. 22-23; 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 

416.920(d), 416.925, 416.926. Because plaintiff was not presumptively disabled at step three, 

the ALJ evaluated how plaintiffs impairments affected his ability to work by assessing his 

residual functional capacity (RFC). Tr. 23-30. 

At step four, with regard to plaintiffs DIB application, the ALJ found, from the alleged 

onset date of December 31, 2001 through the date last insured of December 31, 2006, plaintiff 

had the RFC to "perform a full range of work at all exertional levels, but with the following nonexertional limitations: He could remember, understand, and carry out instructions and tasks 

generally required by occupations with a SVP of 1-4 (unskilled to semi-skilled)." Tr. 23. With 

4 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 4 of 12
regard to plaintiffs SSI application, as of the protective filing date of October 11, 2011, the ALJ 

found that plaintiff had the RFC to "perform a full range of medium work as defined in 20 CFR 

416.967(c)." Tr. 23. 

Specifically, the ALJ found plaintiff 

can occasionally lift and carry 50 pounds, frequently lift and carry 25 pounds, 

stand and walk about 6 hours in an 8-hour workday, and sit about 6 hours in 

an 8-hour workday. He can remember, understand, and carry out instructions 

and tasks generally required by occupations with a SVP of 1-4. He is limited 

to frequent interaction with supervisors, co-workers, and the general public. 

Tr. 23-24. 

Based on plaintiffs assessed RFC and the testimony of the VE, the ALJ found that prior 

to December 31, 2006, plaintiff could perform "all of his past relevant work, as the work did not 

require the performance of work-related activities precluded by the claimant's residual functional 

capacity through December 31, 2006." Tr. 30, 20 C.F.R. §404.1565. The ALJ also found, as of 

October 11, 2011, plaintiff was "capable of performing past relevant work as a dietary aide and a 

housekeeper." Tr. 30. The ALJ determined "[t]his work does not require the performance of 

work-related activities precluded by the claimant's residual functional capacity as of October 11, 

2011." Tr. 30, 20 C.F.R. §416.965. 

If the plaintiff is unable to perform any past relevant work, the inquiry proceeds to step 

five, where the Commissioner bears the burden to establish that the plaintiff is capable of 

performing other work that exists in significant numbers in the national economy. Yuckert, 482 

U.S. at 141-42; 20 C.F.R. §§ 404.1520(f), 416.920(f). Here, although the ALJ determined 

plaintiff could perform his past relevant work, he also made an alternative step five finding. Tr. 

31-32. Relying on the testimony of the VE, the ALJ found that plaintiff was able to perform 

other work as a housekeeper. Tr. 31-32, 85. Therefore, the ALJ found that plaintiff was not 

disabled within the meaning of the Act. 

5 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 5 of 12
DISCUSSION 

Plaintiff asserts that he should be found disabled as of December 31, 2001 and continuing 

through the present, the Commissioner's decision reversed, and the case remanded for immediate 

payment of benefits. Pl.'s Br. 10. Alternatively, plaintiff seeks remand for further proceedings. 

Pl.'s Br. 10. Plaintiff argues the ALJ erred by failing to evaluate and find him disabled under 

Listing 12.05 Intellectual Disability at step three of his analysis. Pl.'s Br. 6-9. 

Step three requires the ALJ to consider the severity of the claimant's impairment, by 

comparing the impairment to those listed in Appendix I of the Regulations, ("the Listings"). 20 

C.F.R. Part 404, Subpt. P, App. I. To meet a Listing, the claimant's impairment must satisfy all 

of the components of the Listing. 20 C.F.R. §§404.1525(d), 416.925(d). The plaintiff has the 

burden of proving that he has an impairment that meets or equals a Listing. Burch, 400 F.3d at 

683. If the claimant's impairment meets or equals a listed impairment, he will be found disabled 

at step three. 

Here, the ALJ evaluated plaintiffs mental impairments and found "claimant's mental 

impairments, considered singly and in combination, do not meet or medically equal the criteria 

of listings 12.02, 12.06, and 12.09," relating to Organic Mental Disorders, Affective Disorders, 

and Substance Addiction Disorders, respectively. Tr. 22-23. In making this finding, the ALJ 

evaluated the "paragraph B" and "paragraph C" criteria and found "[b ]ased on the totality of the 

medical evidence of record" neither the "paragraph B" or "paragraph C" criteria were satisfied. 

Tr. 23. The ALJ did not discuss Listing 12.05C in his step three findings. Therefore, the issue is 

whether the record supports remand for consideration of disability under Listing 12.05C. 

The structure of Listing 12.05 for intellectual disability is different from the other mental 

disorders listings, and therefore requires a different analysis. 20 C.F.R. Pt. 404, Subpt. P, App. 

6 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 6 of 12
1, §12.00(A). "Listing 12.05 contains an introductory paragraph with the diagnostic description 

for intellectual disability," and "four sets of criteria (paragraphs A through D)." Id. If an 

impairment "satisfies the diagnostic description in the introductory paragraph and any one of the 

four sets of criteria," the impairment meets the listing. Id. In order to meet Listing 12.05C 

plaintiff must show, "(1) subaverage intellectual functioning with deficits in adaptive functioning 

initially manifested before age 22; (2) a valid IQ score of 60 to 70; and (3) a physical or other 

mental impairment imposing an additional and significant work-related limitation." Kennedy v. 

Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013)(citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 

12.05(C)). 

1. Valid IQ Score 

Listing 12.05C requires plaintiff to establish that he has "a valid verbal, performance, or 

full scale IQ of 60 through 70." 20 C.F.R. Pt. 404, Subpt. P, App. 1 §12.05(C). "Where more 

than one IQ is customarily derived from the test administered, e.g., where verbal, performance, 

and full scale IQs are provided in the Wechsler series, we use the lowest of these in conjunction 

with 12.05." 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.00(D)(6)(c). 

Here, the ALJ noted plaintiff's IQ scores obtained by Dr. R.W. Davis and Dr. Karla Rae 

Causeya. Tr. 25, 28. In 1981, Dr. Davis administered an IQ test on plaintiff and he received "an 

estimated verbal score of 79, an estimated performance IQ score of 89, and an estimated full 

scale IQ score of 83." Tr. 25. In October 2013, Dr. Causeya evaluated plaintiff using the 

Wechsler Memory Scale_IV and plaintiff received a full scale IQ of 72 and a "verbal 

comprehension score of 68." Tr. 28, 356-69. 

Plaintiff argues he meets the first prong of Listing 12.05C with his October 2013 verbal 

IQ score of 68, Auditory Memory score of 69, and Delayed Memory score of 69. Pl.'s Br. 8. 

7 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 7 of 12
Plaintiff further argues the ALJ "failed to discuss Plaintiffs verbal IQ of 68" and "made no 

finding that rejected these scores." Pl.' s Br. 8. Plaintiff is correct that the ALJ failed to 

specifically address or discredit plaintiffs verbal IQ score of 68 and his Auditory Memory and 

Delayed Memory scores of 69. Tr. 28. 

An ALJ may reject a claimant's IQ score if it is not valid. See Thresher v. Astrue, 283 F. 

App'x. 473, 475 (9th Cir. 2008). The ALJ failed to reference Listing 12.05C, and it is unclear 

whether his analysis of Dr. Causeya's findings included plaintiffs IQ scores or whether he found 

the scores invalid. Id. (case remanded to allow ALJ to clarify her considerations at step three 

with respect to plaintiffs IQ score and overall decision). This ambiguity arguably would be 

grounds for remand as plaintiffs 2013 IQ scores meet the first prong of 12.05C. See Orosco v. 

Colvin, 2016 WL 1584151, at *5 (D. Or. Apr. 18, 2016); Gomez v. Astrue, 695 F. Supp. 2d 1049, 

1056 (C.D. Cal. 2010) (where "silent disregard of the verbal IQ score" was an error and grounds 

for remand). 

2. An Additional Impairment 

Listing 12.05C also requires plaintiff to show he has "a physical or other mental 

impairment imposing an additional and significant work-related limitation of function." 20 

C.F.R. Pt. 404, Subpt. P, App. 1 §12.05(C). "[A]n impairment imposes a significant workrelated limitation of function when its effect on a claimant's ability to perform basic work 

activities is more than slight or minimal." Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir. 1987). 

If the claimant has another severe impairment at step two, then this requirement is satisfied. See 

Id. at 633 n.3 (citing Nieves v. Sec'y of Health Human Servs., 775 F.2d 12, 14 (1st Cir. 1985)); 

see also Pedro, 849 F. Supp. 2d at 1015 (citing Stokes v. Astrue, 2011 WL 285224, at *10 (D. 

Or. Jan. 11, 2011)). 

8 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 8 of 12
Here, the ALJ found plaintiff had the "severe" impairments of arthropathies of the low 

back and left knee; cognitive disorder; anxiety disorder; and alcohol abuse at step two of his 

analysis. Tr. 22. The ALJ's finding that plaintiff had multiple severe impairments at step two of 

his analysis is substantial evidence to satisfy the second prong of Listing 12.05C. See Fanning, 

827 F.2d at 633 n.3; 20 C.F.R. §Pt. 404, Subpt. P, App. 1, §12.00A. 

3. Onset Before Age 22 

The introductory paragraph of Listing 12.05 requires plaintiff to show he has 

"significantly subaverage general intellectual functioning with deficits in adaptive functioning 

manifested during the developmental period; i.e., the evidence demonstrates or supports onset of 

the impairment before age 22." 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.05. Adaptive 

functioning has been described as a "person's effectiveness in areas such as social skills, 

communication, and daily living skills, and how well the person meets the standards of personal 

independence and social responsibility expected of his or her age by his or her cultural group." 

Heller v. Doe, 509 U.S. 312, 328 (1993)(citing Manual of Mental Disorders 28-29). "A claimant 

may use circumstantial evidence to demonstrate adaptive functioning deficits that existed prior to 

age 22, 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.'" Glenn v. 

Colvin, 2013 WL 3046871, at *3 (D. Or. June 11, 2013)(citing Pedro v. Astrue, 849 F. Supp. 2d 

1006, 1011 (D. Or. 2011)); see also Campbell v. Astrue, 2011 WL 444783, at *17 (E.D. Cal. 

Feb. 8, 2011). 

Plaintiff argues there is circumstantial evidence in the record to satisfy the introductory 

paragraph of Listing 12.05C, citing his enrollment in special education classes, repeating the 

fourth grade, difficulties with reading, spelling, and math, dropping out of school and never 

9 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 9 of 12
completing his GED. Pl.'s Br. 7; Tr. .333, 360. Plaintiff further notes Dr. R.W. Davis' 

Neuropsychological Examination of plaintiff found frontal lobe damage, and Dr. Davis opined 

that "Mr. Jones shows evidence of organic brain dysfunction severe enough to impair the level of 

his ability to function. This is probably a chronic condition that may have existed to some 

degree from birth ... " Pl.'s Br. 7-8; Tr. 307-09. Finally, plaintiff notes that he has a history of 

low-skilled work, has been homeless for most of his life, and never has had a driver's license, 

bank account, or managed his own bills. Pl.'s Br. 8; Tr. 228, 360, 364. For these reasons, 

plaintiff argues he satisfies the introductory paragraph of Listing 12.05C. 

Defendant responds that plaintiff "indicated in his application that he was not disabled 

before age 22," and "reported that his main barrier to working was his history of manslaughter at 

age 22." Def.'s Br. 7-8; Tr. 145, 219. Defendant further argues plaintiff "failed to demonstrate 

any deficits in adaptive functioning manifesting prior to age 22" because he "demonstrated the 

ability to work at substantial gainful activity levels for many years and had an extensive history 

of alcohol abuse during his early life." Def.'s Br. 7-8. Specifically, defendant argues that "[a]n 

IQ score is not sufficient to show deficits of adaptive functioning during the developmental 

period," and that "a claimant must show an 'inability to cope with the challenges of an ordinary 

everyday life' during the developmental period." Def.'s Br. 8-9(citing Randall v. Astrue, 570 

F.3d 651, 660-62 (5th Cir. 2009); Novy v. Astrue, 497 F.3d 708, 710 (7th Cir. 2007)). Overall, 

defendant argues there is no evidence to show plaintiff demonstrated an inability to cope with 

challenges of ordinary, everyday life. Def.' s Br. 9. Defendant cites evidence of record 

establishing that plaintiff cooked, shopped, navigated public transportation, cleaned his living 

environments, and worked as a dishwasher, furniture loader, and as a dietary aide for fifteen 

10 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 10 of 12
years, which negates any argument that plaintiff had "deficits in adaptive functioning prior to age 

22." Def.'s Br. 9, 11; Tr. 26, 84-85. 

I find the evidence is insufficient for plaintiff to satisfy the introductory paragraph of 

Listing 12.05C. Granted, plaintiff cites circumstantial evidence that he was enrolled in special 

education classes, and the reports of Dr. Daniel L. Scharf, M.D. and Dr. Karla Rae Causeya, 

Psy.D., who both noted plaintiffs enrollment in special education classes based on his subjective 

reports. Pl.'s Br. 7; Tr. 333, 360. The ALJ found plaintiff not entirely credible, however, neither 

party challenged this determination. Plaintiff provides no additional evidence, other than his 

own testimony, that he was enrolled in special education classes. 

Next, plaintiffs long work history as a dietary aide contradicts plaintiffs claim that he 

had adaptive functioning deficits prior to age 22. Tr. 50-52. Plaintiff nonetheless argues his 

"actual ability to work is irrelevant," noting that under Pedro v. Astrue, "the court considered a 

history of low skilled work, struggling with reading and writing and participation in special 

education as evidence of deficits in adaptive functioning during the developmental years." Pl.'s 

Rep. Br. 2-3. However, I find this case distinguishable. In Pedro, the district court found the 

ALJ erred by ignoring VE testimony that plaintiffs history of "low skilled work" was "more 

akin to a supervised workshop setting or 'accommodated employment' and not competitive 

employment." Pedro, 849 F.Supp.2d at 1013-14. The court held this "accommodated 

employment," along with plaintiffs enrollment in special education classes, and struggles with 

reading and writing, and memory, was "ample support to find that plaintiff demonstrated 

significantly subaverage intelligence with deficits in adaptive functioning prior to age 22." Id. at 

1012, 1014. Here, I find plaintiffs work as a dietary aide was not the type of "accommodated 

employment" in Pedro to warrant a finding that plaintiff had deficits in adaptive functioning 

11 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 11 of 12
prior to age 22. Plaintiff worked for fifteen years as a dietary aide, and also worked as a 

furniture loader and unloader, and dishwasher. Tr. 84-85. Plaintiff did not discuss any 

difficulties or accommodations provided for him to perform these jobs, and only lost them 

because of his alcohol use, the employer going out of business, or his dissatisfaction with the 

work environment which prompted him to quit. Tr. 64-69. Plaintiff did not engage in 

"accommodated employment" like in Pedro, and I find plaintiffs work history insufficient to 

show plaintiff had adaptive functioning deficits prior to age 22. 

Finally, plaintiff cites only limited medical evidence of record to show he had any mental 

health treatment related to his alleged mental health disability, which the ALJ reasonably 

determined was not the "extent of medical treatment one would expect for a totally disabled 

individual." Tr. 25. For the above reasons, I find insufficient evidence to satisfy the 

introductory paragraph of Listing 12.05C, and the ALJ did not err in failing to evaluate plaintiff 

under Listing 12.05C. 

CONCLUSION 

The ALJ' s finding that plaintiff was not disabled under the Act is supported by 

substantial evidence in the record. Accordingly, the Commissioner's decision is AFFIRMED. 

IT IS SO ORDERED. 

5/ 

Dated this ___j_::._ day of June 2016. 

Ann Aiken 

United States District Judge 

12 - OPINION AND ORDER 

Case 3:15-cv-01064-AA Document 18 Filed 06/01/16 Page 12 of 12