IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MATTHEW T. REYES, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

MERRILL SCHNEIDER 

Schneider Kerr Law Off ices 

P.O. Box 14490 

Portland, OR 97293 

(503) 255-9092 

Attorneys for Plaintiff 

BILLY J. WILLIAMS 

United States Attorney 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

(503) 727-1003 

1 - OPINION AND ORDER 

3:15-CV-02206-BR 

OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 1 of 13
DAVID MORADO 

Regional Chief Counsel 

MICHAEL S. HOWARD 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth Avenue, Suite 2900, M/S 221A 

Seattle, WA 98104 

(206) 615-2539 

Attorneys for Defendant 

BROWN, Judge. 

Plaintiff Matthew T. Reyes seeks judicial review of a final 

decision of the Commissioner of the Social Security 

Administration (SSA) in which she denied Plaintiff's application 

for Supplemental Security Income (SSI) under Title XVI of the 

Social Security Act. This Court has jurisdiction to review the 

Commissioner's final decision pursuant to 4.2 U.S.C. § 405(g). 

For the reasons that follow, the Court REVERSES the decision 

of the Commissioner and REMANDS this matter pursuant to sentence 

four of 42 U.S.C. § 405(g) for the immediate calculation and 

award of benefits. 

ADMINISTRATIVE HISTORY 

Plaintiff filed an application for SSI 1 on December 30, 

2011, and alleged a disability onset date of January 7, 2003. 

1 Plaintiff also filed an application for Disability 

Insurance Benefits (DIB), but he withdrew that application at the 

February 5, 2014, hearing. 

2 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 2 of 13
Tr. 77. 2 His application was denied initially and on 

reconsideration. An Administrative Law Judge (ALJ) held a 

hearing on February 5, 2014. Tr. 38-76. At the hearing 

Plaintiff and a vocational expert (VE) testified. Plaintiff was 

represented by an attorney. On March 18, 2014, the ALJ issued an 

opinion in which he found Plaintiff is not disabled and, 

therefore, is not entitled to benefits. Tr. 21-36. On 

September 25, 2015, that decision became the final decision of 

the Commissioner when the Appeals Council denied Plaintiff's 

request for review. Tr. 1-7. See Sims v. Apfel, 530 U.S. 103, 

106-07 (2000). 

BACKGROUND 

Plaintiff was born on November 25, 1972, and was 41 years 

old at the time of the hearing. Tr. 77. Plaintiff completed 

eighth grade. Tr. 54. Plaintiff has past relevant work 

experience as an in-home care provider, gutter installer, and 

office cleaner. Tr. 30. 

Plaintiff alleges disability due to headaches "with a 

history of traumatic brain injury," a learning disorder, and a 

cognitive disorder. Tr. 23. 

Except when noted, Plaintiff does not challenge the ALJ's 

2 Citations to the official transcript of record filed by 

the Commissioner on April 11, 2016, are referred to as "Tr." 

3 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 3 of 13
summary of the medical evidence. After carefully reviewing the 

medical records, this Court adopts the ALJ's summary of the 

medical evidence. See Tr. 26-29. 

STANDARDS 

The initial burden of proof rests on the claimant to 

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th 

Cir. 2012). To meet this burden a claimant must demonstrate his 

inability "to engage in any substantial gainful activity by 

reason of any medically determinable physical or mental 

impairment which . has lasted or can be expected to last for 

a continuous period of not less than 12 months." 42 U.S.C. 

§ 423(d) (1) (A). The ALJ must develop the record when there is 

ambiguous evidence or when the record is inadequate to allow for 

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 

881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F. 3d 

453, 459-60 (9~ Cir. 2001)). 

The district 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 as a whole. 42 

u.s.c. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is 

"relevant evidence that a reasonable mind might accept as 

adequate to support a conclusion." Molina, 674 F.3d. at 1110-11 

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Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 4 of 13
(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 

(9th Cir. 2009)). It is more than a mere scintilla [of evidence] 

but less than a preponderance. 

at 690). 

Id. (citing Valentine, 574 F.3d 

The ALJ is responsible for determining credibility, 

resolving conflicts in the medical evidence, and resolving 

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 

2009). The court must weigh all of the evidence whether it 

supports or detracts from the Commissioner's decision. Ryan v. 

Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even 

when the evidence is susceptible to more than one rational 

interpretation, the court must uphold the Commissioner's findings 

if they are supported by inferences reasonably drawn from the 

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the 

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 

2006) . 

DISABILITY ANALYSIS 

I. The Regulatory Sequential Evaluation 

The Commissioner has developed a five-step sequential 

inquiry to determine whether a claimant is disabled within the 

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 

2007). See also 20 C.F.R. § 416.920. Each step is potentially 

5 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 5 of 13
dispositive. 

At Step One the claimant is not disabled if the Corrunissioner 

determines the claimant is engaged in substantial gainful 

activity. 20 C.F.R. § 416.920(b). See also Keyser v. Comm'r of 

Soc. Sec., 648 F.3d 721, 724 (9ili Cir. 2011). 

At Step Two the claimant is not disabled if the Corrunissioner determines the claimant does not have any medically severe 

impairment or combination of impairments. 20 C.F.R. 

§ 416. 920 (c). See also Keyser, 648 F.3d at 724. 

At Step Three the claimant is disabled if the Corrunissioner 

determines the claimant's impairments meet or equal one of a 

number of listed impairments that the Corrunissioner acknowledges 

are so severe they preclude substantial gainful activity. 20 

C.F.R. § 416.920(a) (4) (iii). See also Keyser, 648 F.3d at 724. 

The criteria for the listed impairments, known as Listings, are 

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed 

Impairments). 

If the Corrunissioner proceeds beyond Step Three, she must 

assess the claimant's Residual Functional Capacity (RFC). The 

claimant's RFC is an assessment of the sustained, work-related 

physical and mental activities the claimant can still do on a 

regular and continuing basis despite his limitations. 20 C.F.R. 

§ 416.945(a). See also Social Security Ruling (SSR) 96-8p. "A 

'regular and continuing basis' means 8 hours a day, for 5 days a 

6 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 6 of 13
week, or an equivalent schedule." SSR 96-8p, at *l. In other 

words, the Social Security Act does not require complete 

incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 

659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885 

F.2d 597, 603 (9~ Cir. 1989)). 

At Step Four the claimant is not disabled if the 

Commissioner determines the claimant retains the RFC to perform 

work he has done in the past. 20 C.F.R. § 416.920(a) (4) (iv). 

See also Keyser, 648 F.3d at 724. 

If the Commissioner reaches Step Five, she must determine 

whether the claimant is able to do any other work that exists in 

the national economy. 20 C.F.R. § 416.920(a) (4) (v). See also 

Keyser, 648 F.3d at 724. Here the burden shifts to the 

Commissioner to show a significant number of jobs exist in the 

national economy that the claimant can perform. Lockwood v. 

Comm' r Soc. Sec. Admin., 616 F. 3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of 

a VE or by reference to the Medical-Vocational Guidelines set 

forth in the regulations at 20 C.F.R. part 404, subpart P, 

appendix 2. If the Commissioner meets this burden, the claimant 

is not disabled. 20 C.F.R. § 416.920(g) (1). 

ALJ'S FINDINGS 

At Step One the ALJ found Plaintiff has not engaged 

7 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 7 of 13
in substantial gainful activity since his January 7, 2003, 

alleged onset date. Tr. 23. 

At Step Two the ALJ found Plaintiff has the severe 

impairments of headaches "with a history of traumatic brain 

injury," a learning disorder, and a cognitive disorder. Tr. 23. 

At Step Three the ALJ concluded Plaintiff's impairments do 

not meet or equal the criteria for any Listed Impairment from 20 

C.F.R. part 404, subpart P, appendix 1. The ALJ specifically 

concluded Plaintiff's impairments do not meet or equal the 

criteria for Listing 12.02. The ALJ found Plaintiff has the RFC 

to perform light work and is able to lift and to carry up to 20 

pounds occasionally and ten pounds frequently. Tr. 25. The ALJ 

found Plaintiff is limited to "work of a simple, routine and 

repetitive nature, but would face problems with more detailed 

instructions and tasks in the workplace." Tr. 25. The ALJ also 

found Plaintiff should not be required to work with the public or 

"where written literacy in English is a requirement." Tr. 25. 

At Step Four the ALJ found Plaintiff could not perform his 

past relevant work. Tr. 30. 

At Step Five the ALJ found Plaintiff could perform jobs that 

exist in significant numbers in the national economy. Tr. 30. 

Accordingly, the ALJ found Plaintiff is not disabled. 

8 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 8 of 13
DISCUSSION 

Plaintiff contends the ALJ erred at Step Three when he 

failed to evaluate whether Plaintiff's impairments meet Listing 

12.0S(C). 

I. The ALJ erred at Step Three when he failed to evaluate 

whether Plaintiff's impairments meet Listing 12.0S(C). 

At Step Three the Commissioner must determine whether a 

claimant's impairments meet or equal one of the listed 

impairments and are so severe that they preclude substantial 

gainful activity. 20 C.F.R. § 416.920(a) (4) (iii). 

Plaintiff alleges the ALJ erred at Step Three when he found 

Plaintiff's impairments did not meet Listing 12.0S(C) 

(Intellectual Disability). 

Listing 12.0S(C) provides a claimant meets the listing if he 

meets the following criteria: 

Intellectual disability 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 [and a claimant has] 

* * * 

C. A valid verbal, performance, or full scale IQ 

of 60 through 70 and 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, § 12.0S(C). 

On May 14, 2012, Cheryl Brishchetto, Ph.D., performed a 

consultative neuropsychological evaluation of Plaintiff and 

9 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 9 of 13
determined Plaintiff had a full-scale IQ score of 65. Tr. 636. 

In addition, the ALJ concluded at Step Two that Plaintiff 

suffered the significant impairments of headaches, a learning 

disorder, and a cognitive disorder. The Court, therefore, 

concludes the record reflects Plaintiff meets the criteria of 

paragraph C, Listing 12.05. 

Defendant, however, asserts the record does not support a 

finding that Plaintiff meets the first paragraph of Listing 12.05 

because the record does not reflect Plaintiff suffered the onset 

of an intellectual impairment before age 22. 

Courts have held the onset of low-intellectual functioning 

before age 22 can be established by "circumstantial evidence to 

demonstrate adaptive functioning deficits, 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." Pedro v. Astrue, 849 F. Supp. 2d 1006, 

1012 (D. Or. 2011) (citing Campbell v. Astrue, No. 1:09-CV00465GSA, 2011 WL 444783, at *17 (E.D. Cal. Feb. 8, 2011)). See 

also Gomez v. Astrue, 695 F.Supp.2d at 1049, 1058-59 (C.D. Cal. 

2010) (ALJ erred when he failed to evaluate whether Plaintiff's 

impairments met Listing 12.05(C) when circumstantial evidence 

supported an inference of low-intellectual functioning before age 

22). Here the record reflects Plaintiff completed only eighth 

grade. He did not go to high school or obtain a GED. Plaintiff 

10 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 10 of 13
read and spoke English as his first language at home but was 

required to repeat first grade because he was unable to read in 

either English or Spanish. Tr. 55, 624. Plaintiff was diagnosed 

with a learning disorder and placed in special-education cases in 

elementary school. Tr. 54, 241, 259, 624. 

On this record the Court concludes the ALJ erred when he 

failed to evaluate whether Plaintiff's impairment satisfied 

Listing 12.05(C). 

REMAND 

The decision whether to remand for further proceedings or 

for immediate payment of benefits generally turns on the likely 

utility of further proceedings. Harman v. Apfel, 211 F.3d 1172, 

1179 (9ili Cir. 2000). When ''the record has been fully developed 

and further administrative proceedings would serve no useful 

purpose, the district court should remand for an immediate award 

of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 

2004). The decision whether to remand this case for further 

proceedings or for the payment of benefits is a decision within 

the discretion of the court. Harman, 211 F.3d 1178. 

The decision whether to remand for further proceedings or 

for immediate payment of benefits generally turns on the likely 

utility of further proceedings. Id. at 1179. The court may 

"direct an award of benefits where the record has been fully 

11 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 11 of 13
developed and where further administrative proceedings would 

serve no useful purpose." Smolen, 80 F.3d at 1292. 

The Ninth Circuit has established a three-part test "for 

determining when evidence should be credited and an immediate 

award of benefits directed." Harman, 211 F.3d at 1178. The 

Court should grant an immediate award of benefits when: 

(1) the ALJ has failed to provide legally 

sufficient reasons for rejecting . 

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 were 

such evidence credited. 

Id. The second and third prongs of the test often merge into a 

single question: Whether the ALJ would have to award benefits if 

the case were remanded for further proceedings. Id. at 1178 n.2. 

The Court has determined the record reflects Plaintiff has 

an impairment that meets the criteria of paragraph C, Listing 

12.05 and the record adequately supports an inference that 

Plaintiff's impairment also meets the criteria of the first 

paragraph of Listing 12.05. After evaluating these 

determinations in light of the criteria of Listing 12.05(C), the 

Court concludes Plaintiff has established he satisfies the 

requirements of Listing 12.05(C), and, therefore, Plaintiff is 

disabled. See 20 C.F.R. § 416.920(a) (4) (iii) (At Step Three the 

claimant is disabled if his impairments meet or equal one of a 

number of listed impairments the Commissioner acknowledges are so 

12 - OPINION AND ORDER 

Case 3:15-cv-02206-BR Document 21 Filed 11/04/16 Page 12 of 13
severe that they preclude substantial gainful activity). The 

Court, therefore, concludes this matter should not be remanded 

for further proceedings. See Schneider v. Comm'r, 223 F.3d 968 

(9th Cir. 2000). See also Reddick, 157 F.3d at 729 ("We do not 

remand this case for further proceedings because it is clear from 

the administrative record that Claimant is entitled to 

benefits."); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 

1989) (if remand for further proceedings would only delay the 

receipt of benefits, judgment for the claimant is appropriate). 

Accordingly, the Court remands this matter for the immediate 

calculation and award of benefits to Plaintiff. 

CONCLUSION 

For these reasons, the Court REVERSES the decision of 

the Commissioner and REMANDS this matter pursuant to sentence 

four of 42 U.S.C. § 405(g) for the immediate calculation and 

award of benefits. 

IT IS SO ORDERED. 

DATED this 4th day of November, 2016. 

ANN~ United States District Judge 

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