Kristy Pryor v. Andrew Saul

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTY LYNN PRYOR, No. 18-15383
Plaintiff-Appellant, D.C. No. 2:16-cv-03018-KJN
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding**
Argued and Submitted August 5, 2019
San Francisco, California
Before: SILER,*** HAWKINS, and NGUYEN, Circuit Judges.
Kristy Lynn Pryor appeals from the district court’s order affirming the Social
Security Commissioner’s determination that her disability ended on October 31,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before Magistrate Judge Newman under
28 U.S.C. § 636(c).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
2013, and she is not entitled to Supplemental Security Income under Title XVI of
the Social Security Act as an adult. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing the district court’s decision de novo and the determination of the
administrative law judge (“ALJ”) for substantial evidence, Dale v. Colvin, 823 F.3d
941, 943 (9th Cir. 2016), we reverse and remand.
Pryor contends that the ALJ erred at step three of the sequential evaluation
process, see 20 C.F.R. § 404.1520(a)(4), by determining that Pryor does not meet
Listing 12.05(C). To meet Listing 12.05(C), a claimant must demonstrate “(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). The Commissioner concedes, and we agree, that the ALJ
erred in its determination that Pryor “does not have 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.” For example, the
only IQ test results in the record report a full scale IQ of 70, and the ALJ gave that
examining physician’s report “considerable weight.”
The Commissioner contends that this error is harmless because Pryor was also
required, but failed, to demonstrate the existence of deficits in adaptive functioning
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initially manifesting before age 22. Although we will not reverse on account of an
error that is harmless, Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), our
review is limited to “only the reasons provided by the ALJ in the disability
determination[,] and [we] may not affirm the ALJ on a ground upon which he did
not rely,” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The ALJ did not analyze
whether Pryor demonstrated deficits in adaptive functioning manifesting before age
22. Therefore, the ALJ’s error regarding the remaining Listing 12.05(C) criteria
requires remand. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015)
(“Because we cannot engage in such substitution or speculation, such error will
usually not be harmless.”).
We remand to the district court to further remand to the agency for
proceedings consistent with this disposition. Because we remand for reconsideration
at step three of the sequential evaluation process, we do not reach the other
arguments. See Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990).
REVERSED AND REMANDED.
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