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July 22, 1996

LESLIE RAY, Plaintiff,
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: WARE

 Plaintiff Leslie Ray brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security denying his application for disability insurance benefits and supplemental security income benefits. The Court has read the moving and responding papers. Based upon all pleadings filed to date, the Court GRANTS Plaintiff's motion to remand the case to the Commissioner of Social Security and DENIES Defendant's motion for summary judgment.


 Plaintiff, who was born on July 31, 1962 suffers from diminished intellectual functioning and dyslexia (TR 19). He graduated from high school by taking special education courses and has past relevant work experience as a busboy, scrap worker and dock worker. He was last employed in 1989 (TR 18). Plaintiff lives with his mother, who claims that Plaintiff is incapable of independently performing many activities of daily living and that he has difficulty maintaining employment due to his inability to keep pace. The record in this case is sparse. It contains only two psychological evaluations of Plaintiff's mental capacity. The first evaluation was performed on May 8, 1993 by Dr. Joseph Pazdernik, Ph.D., a licensed psychologist. The results indicate Plaintiff has a full scale I.Q. of 74, a verbal score of 72, and a performance scale of 79. *fn1" The second evaluation was performed on February 2, 1995 by a psychologist with Santa Clara Valley Medical Center, Dr. Karzmark Ph.D., who found Plaintiff has an I.Q. of 67.

 Plaintiff applied for Social Security disability benefits on January 21, 1993 and for Supplemental Security Income benefits on January 8, 1993. The Plaintiff's claim was denied initially and upon reconsideration. Plaintiff's claim was then heard before an Administrative Law Judge (ALJ), who also denied Plaintiff benefits. Plaintiff did not have counsel present at the hearing, rather his mother served as his representative. Upon the Appeals Council denial of a request for review, Plaintiff brought this civil action before the Court.



 a. General Legal Standard

 The District Court's scope of review of the ALJ's decision is limited. This court will not disturb the ALJ's denial of disability benefits unless the ALJ's findings of fact are not supported by substantial evidence or the ALJ failed to apply the proper legal standard. Paulson v. Bowen, 836 F.2d 1249, 1250. Substantial evidence means more than a scintilla," Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971), but "less than a preponderance," Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988). It means "such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. To determine whether there is substantial evidence to support the ALJ's findings, this court must review the administrative record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Questions of credibility and resolution of conflicts in the testimony are functions solely for the ALJ. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).

 b. The ALJ Has a Duty to Develop the Record

 The ALJ has an independent duty to fully develop the record at disability hearings. "Lack of counsel does not affect the validity of the hearing and hence warrant remand, unless the claimant can demonstrate prejudice or unfairness in the administrative proceedings." Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981). However, the ALJ's duty is heightened when the claimant is unrepresented: "where the claimant is not represented, it its incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Higbee v. Sullivan 975 F.2d 558, 561 (9th Cir. 1992). The duty is further heightened in cases involving mental impairments. Delorme v. Sullivan 924 F.2d 841, 849 (9th Cir. 1991). In Higbee, the court cites Thompson v. Sullivan, 933 F.2d 581, 586 (7th Cir. 1991), which states "When a claimant is both unrepresented and suffers from a mental impairment . . . the ALJ's duty to carefully develop the record is even greater." Thus, failure to fully develop the record may warrant remand of the ALJ's decision.


 In the case at bar, claimant appears to have been prejudiced because the ALJ failed to explore whether claimant qualifies as disabled under 20 C.F.R. Part 404c, Subpart P, Appendix 1 § 12.05(d) in Appendix 1. 20 C.F.R. § 404.1520 outlines the five sequential steps the ALJ must ...

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