IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DEMARCUS ROGERS, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner of Social Security, 

Defendant. 

PAP AK, Magistrate Judge: 

3: 15-cv-02122-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Demarcus Rogers ("Rogers") seeks judicial review of the Commissioner of 

Social Security's final decision denying his application for Supplemental Security Income 

("SSI") under Title XVI of the Social Security Act (the "Act"). This Court has jurisdiction 

pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). I have considered all of the parties' briefs and all 

of the evidence in the administrative record. For the reasons set forth below, the 

Case 3:15-cv-02122-PK Document 21 Filed 12/09/16 Page 1 of 9
Commissioner's final decision should be REVERSED and REMANDED for the immediate 

payment of benefits. 

DISABILITY ANALYSIS FRAMEWORK 

To establish disability within the meaning of the Act, a claimant must demonstrate 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 Commissioner has established a five-step 

sequential process for dete1mining whether a claimant has made the requisite demonstration. See 

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 416.920(a)(4). At the first 

four steps of the process, the burden of proof is on the claimant; only at the fifth and final step 

does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 

(9th Cir. 1999). 

At the first step, the Administrative Law Judge considers the claimant's work activity, if 

any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 416.920(a)(4)(i). If the ALJ finds that the 

claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See 

Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 416.920(a)(4)(i), 416.920(b). Otherwise, the 

evaluation will proceed to the second step. 

At the second step, the ALJ considers the medical severity of the claimant's impaitments. 

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 416.920(a)(4)(ii). An impairment is 

"severe" if it significantly limits the claimant's ability to perform basic work activities and is 

expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see 

also 20 C.F.R. § 416.920(c). The ability to perform basic work activities is defined as "the 

abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 416.921(b); see also Bowen, 482 

2 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-02122-PK Document 21 Filed 12/09/16 Page 2 of 9
U.S. at 141. If the ALJ finds that the claimant's impaitments are not severe or do not meet the 

duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see 

also 20 C.F.R. §§ 416.920(a)(4)(ii), 416.920(c). 

If the claimant's impairments are severe, the evaluation will proceed to the third step, at 

which the ALJ determines whether the claimant's impairments meet or equal "one of a number of 

listed impairments that the [Commissioner] acknowledges are so severe as to preclude 

substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 

416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated 

in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See 

Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d). 

If the claimant's impairments are not equivalent to one of the enumerated impairments, 

the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all 

the relevant medical and other evidence in the claimant's case record. See 20 C.F .R. § 

416.920(e). The RFC is an estimate of the claimant's capacity to perfotm sustained, workrelated, physical and mental activities on a regular and continuing basis, despite the limitations 

imposed by the claimant's impairments. See 20 C.F.R. § 416.945(a); see also SSR 96-8p, 1996 

WL 374184. 

At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 

416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can 

still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 

482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iv), 416.920(f). In the event the claimant is 

3 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-02122-PK Document 21 Filed 12/09/16 Page 3 of 9
no longer capable of performing his or her past relevant work, the evaluation will proceed to the 

fifth and final step, at which the burden of proof is, for the first time, on the Commissioner. 

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's age, education, and work experience to determine whether the claimant can perfotm 

any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; 

see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner 

meets its burden to demonstrate that the claimant is capable of performing jobs existing in 

significant numbers in the national economy, the claimant is conclusively found not to be 

disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g), 

416.960(c), 416.966. A claimant will be found entitled to benefits ifthe Commissioner fails to 

meet its burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 

416.920(a)(4)(v), 416.920(g). 

LEGAL STANDARD 

A reviewing Comt must affirm an Administrative Law Judge's decision ifthe ALJ 

applied the proper legal standards and his findings are supported by substantial evidence in the 

record. See 42 U.S.C. § 405(g); see also Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 

2004). "'Substantial evidence' means more than a mere scintilla, but less than a preponderance; 

it is such relevant evidence as a reasonable person might accept as adequate to suppott a 

conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc. 

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 

The Court must review the record as a whole, "weighing both the evidence that supports 

and the evidence that detracts from the Commissioner's conclusion." Id. at 1035. The Comt 

may not substitute its judgment for that of the Commissioner. See id., citing Robbins, 466 F.3d 

4- FINDINGS AND RECOMMENDATION 

Case 3:15-cv-02122-PK Document 21 Filed 12/09/16 Page 4 of 9
at 882; see also Edlundv. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the ALJ's 

interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible 

[ofJ more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 

1989). 

BACKGROUND 

Born in January, 1984, Rogers was 26 years old on the date of his application for 

benefits. Tr. 176. 1 He dropped out of high school after completing the 10th grade and did not 

earn his GED. Tr. 181. Rogers' s work history is sparse. Id 

Rogers filed for SSI on August 13, 2010, alleging disability as of December 31, 2009. 

Tr. 20. After his application was denied initially and on reconsideration, Rogers requested a 

hearing before an ALJ but failed to appear and testify at the September 25, 2012 hearing. Tr. 33-

45. Attorney representative Justin Keppinger appeared at the hearing on Rogers' behalf. Id On 

October 15, 2012, the ALJ issued a decision finding Rogers not disabled. Tr. 71-79. The 

Appeals Council granted Rogers' s request for review and remanded the case to the ALJ to 

determine whether Rogers constructively waived his right to appear for a hearing. Tr. 84-85. 

On remand, the ALJ found that Rogers constructively waived his right to a hearing 

because the attorney representative was unable to locate Rogers at the time of the hearing; the 

Notice of Hearing was mailed to Rogers's last known address; and the contact procedures 

required by 20 C.F.R. 416.1438 were followed. Tr. 20-21. The ALJ proceeded to follow the 

five-step sequential evaluation process and concluded that Rogers was not disabled. The 

Appeals Council denied Rogers's subsequent request for review, making the ALJ's decision the 

1 Citations to "Tr." refer to the page( s) indicated in the official transcript of the administrative 

record filed herein as Docket No. 8. 

5 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-02122-PK Document 21 Filed 12/09/16 Page 5 of 9
final decision of the Commissioner. Tr. 1-4; see 20 C.F.R. § 422.210(a); see also, e.g., Sims v. 

Apfel, 530 U.S. 103, 107 (2000). This appeal followed. 

SUMMARY OF ALJ FINDINGS 

At the first step of the five-step sequential evaluation process, the ALJ found that Rogers 

had not engaged in substantial gainful activity since his alleged onset date. Tr. 23. At the 

second step, the ALJ found that Rogers had the severe impairments of depressive disorder, 

borderline intellectual functioning, and anxiety disorder. Id. Because Rogers's impairments 

were deemed severe, the ALJ properly proceeded to the third step of the analysis. Id 

At the third step, the ALJ found that none ofRogers's impairments met or equaled any of 

the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. I. Tr. 23. In making this finding, 

the ALJ considered the criteria of Listings 12.02, 12.04, and 12.06, but did not consider Listing 

12.05. Id The ALJ then conducted an assessment ofRogers's RFC and found that he could 

perform a full range of work at all exertional levels with the following limitations: he can 

perform simple, routine, and repetitive tasks, not in a fast-paced production situation, with only 

minimal contact with the public, and would need monitoring or supervision on a periodic basis 

(approximately every two hours), including reminders about tasks. Tr. 24-25. 

At the fourth step of the five-step process, the ALJ found that Rogers was not capable of 

performing any of his past relevant work. Tr. 27. At step five, the ALJ found that Rogers could 

perform jobs that exist in significant numbers in the national economy, including hall cleaner and 

bench worker. Tr. 28. The ALJ therefore concluded that Rogers was not disabled. Tr. 28-29. 

ANALYSIS 

The parties agree that the Commissioner erred because he failed to consider Listing 

12.05C at step three of the sequential evaluation. The pmiies' only disagreement is whether the 

6- FINDINGS AND RECOMMENDATION 

Case 3:15-cv-02122-PK Document 21 Filed 12/09/16 Page 6 of 9
appropriate remedy for the ALJ' s error is a remand for further proceedings, or for the immediate 

payment of benefits. 

The decision whether to remand for further proceedings or for immediate payment of 

benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), 

cett. denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A 

remand for an award of benefits is appropriate when no useful purpose would be served by 

further administrative proceedings or when the record has been fully developed and the evidence 

is insufficient to support the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 

1138-39 (9th Cir. 2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir 2004)). The 

court may not award benefits punitively and must conduct a "credit-as-true" analysis to 

determine if a claimant is disabled under the Act. Id at 1138. 

Under the "credit-as-true" doctrine, evidence should be credited and an immediate award 

of benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for 

rejecting such 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 "credit-as-true" 

doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in 

determining whether to enter an award of benefits upon reversing the Commissioner's decision. 

Connett v. Barnhart, 340 F.3d 871 876 (9th Cir. 2003) (citing Bunnell, 947 F.2d at 348 (en 

bane)). The reviewing court should decline to credit testimony when "outstanding issues" 

remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 

Here, the ALJ did not erroneously discredit evidence, but rather failed to consider 

whether Rogers presented evidence sufficient to meet the criteria under Listing 12.05C. To 

7 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-02122-PK Document 21 Filed 12/09/16 Page 7 of 9
qualify as disabled under Listing 12.05C, a claimant must demonstrate (1) subaverage 

intellectual functioning with deficits in adaptive functioning initially manifested before age 22; 

(2) a valid verbal, performance, or full scale IQ of 60 through 70; and (3) a physical or other 

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

Rogers has met these criteria. First, Rogers demonstrated subaverage intellectual 

functioning of early onset. For example, Rogers was unable to finish high school due to his 

learning problems. Tr. 26, 216, 220. Rogers also attempted to earn his GED but had difficulty 

with the study materials, and has not been able to hold a job for more than a few months, prior to 

age 22. See id. Second, Rogers presented evidence that his full scale IQ score was assessed at 

69 on February 8, 2011. Tr. 222. Third, the ALJ found that, in addition to borderline intellectual 

functioning, Rogers suffered from the severe mental impaitments of anxiety and depressive 

disorders, causing significant work-related limitations. Tr. 23-25. Because Rogers has satisfied 

the elements of Listing 12.05C, the court finds that no futiher proceedings are necessary to 

support a finding of disability. Remand for immediate payment of benefits is appropriate. 

RECOMMENDATION 

The ALJ's decision finding Rogers not disabled is not supported by substantial evidence 

in the record and should therefore be reversed and remanded for the immediate payment of 

benefits. 

SCHEDULING ORDER 

These Findings and Recommendations will be refetl'ed to a district judge. Objections, if 

any, are due fomteen (14) days from service of the Recommendation. Ifno objections are filed, 

then the Findings and Recommendations will go under advisement on that date. 

8 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-02122-PK Document 21 Filed 12/09/16 Page 8 of 9
If objections are filed, then a response is due fomteen (14) days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendations will go under advisement. 

DATED this 9 .f "'- day ofDecembe 

norable Paul Pap 

United States Magistrate Judge 

9 - FINDINGS AND RECOMMENDATION 

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