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McGee v. Astrue

November 9, 2009


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income ("SSI") benefits. Plaintiff claims that the ALJ erred in 1) finding that his mental impairment did not meet or equal a Listed impairment; 2) failing to properly evaluate his credibility; and 3) determining his residual functional capacity. (Joint Stip. at 2.) Because the Agency's decision that Plaintiff was not disabled is not supported by substantial evidence, it is reversed and the case is remanded for further proceedings.


Plaintiff applied for SSI on August 31, 2005. (Administrative Record ("AR") 41.) He claimed that he was disabled due to dyslexia, hip/ankle replacements, and "mental/illiterate." (AR 133.) The Agency denied the applications initially and on reconsideration. (AR 43, 49, 50.) Plaintiff then requested and was granted a hearing before an Administrative Law Judge ("ALJ"). (AR 32, 42.) On October 22, 2007, Plaintiff appeared with counsel and testified at the hearing. (AR 239-67.) On November 2, 2007, the ALJ issued a decision denying the application. (AR 14-23.) The ALJ determined that Plaintiff could perform sedentary work with some limitations. (AR 19, 23.) Plaintiff appealed the ALJ's decision, submitting school records showing that he had been in special education classes in middle school, but the Appeals Council denied his request for review. (AR 5-7.) Thereafter, he commenced this action.


A. Listing 12.05

In his first claim of error, Plaintiff contends that the ALJ erred by failing to find that he meets or equals Listing 12.05, "Mental Retardation," based on the results of IQ tests administered by consulting psychologist Michael Musacco.*fn1 (Joint Stip. at 2-5.) The ALJ dismissed these results because he found that Dr. Musacco found that Plaintiff was malingering and, therefore, the test results were invalid. Plaintiff argues that Dr. Musacco's findings that Plaintiff was malingering were equivocal at best, noting that the doctor opined, on the one hand, that Plaintiff might not have given his best effort during the testing and, on the other hand, that he suffers from a "genuine impairment in his functioning." (Joint Stip. at 3.) Plaintiff also points out that Dr. Musacco recommended that other records be obtained to confirm or rule out his suspicion that Plaintiff was malingering and argues that the ALJ's failure to obtain these records amounted to error. (Joint Stip. at 3-4.) For the following reasons, the Court finds that further development of the record is warranted on this issue.

When Dr. Musacco evaluated Plaintiff in March 2006, Plaintiff reported that he was illiterate and suffered from depression. (AR 210.) Plaintiff told Dr. Musacco that he had attended a school for emotionally and behaviorally disturbed children, had dropped out of school in the ninth grade, and was suspended "all the time." (AR 211.) He denied any history of mental health treatment. Plaintiff conceded that he used marijuana daily and contended that he did so to cope with pain from injuries he sustained in a motorcycle accident years earlier. (AR 211.)

Plaintiff claimed during his examination that he was unable to correctly identify the date, month, or year, or the colors of the American flag, but could name the President. (AR 211-12.) Dr. Musacco and his assistant then administered a number of tests in an effort to determine Plaintiff's cognitive functioning. One of the tests was the Rey 15-item Memory Test, which is designed to screen out malingerers. Plaintiff failed the test on two tries, which Dr. Musacco interpreted as "support[ing] a concern for malingering or intentional poor effort." (AR 212.) Plaintiff was also given a Trails B test, the results of which suggested gross deficits in cognitive functioning. (AR 213.) Here, again, however, Dr. Musacco noted that "concerns for malingering prevent[] me from determining whether these test results are valid." (AR 213.) Plaintiff was given an IQ test and scored 54 on the verbal portion, 65 on the performance portion, and 55 on the full scale portion. (AR 213.) Dr. Musacco once again opined that "these test results should be interpreted with caution as I am uncertain whether [Plaintiff] performed to the best of his ability." (AR 213.) Similarly, Dr. Musacco concluded that Plaintiff's scores on the Wechsler Memory Scale "fell in the significantly impaired range[,] revealing pervasive deficits in his memory skills," but he was uncertain whether the test results were valid. (AR 214.) Ultimately, Dr. Musacco diagnosed Rule Out Malingering, Cannabis Dependence, and Depressive Disorder, not otherwise specified. (AR 214.) He also diagnosed Mild Mental Retardation versus Borderline Intellectual Functioning, stating that "the current test results underestimate[] [Plaintiff]'s functioning, although it is possible that he still suffers from a significant or borderline impairment in his intellectual functioning." (AR 214.) He concluded that Plaintiff's daily activities and social functioning were "significantly impaired," but stated that he was "not able to offer a strong opinion regarding" his mental capacity. (AR 215.) Dr. Musacco noted that, "[d]ue to validity concerns, I would likely recommend that collateral records be obtained (if possible) in order to confirm or rule out the diagnostic conclusions reached in my evaluation." (AR 215.)

Based on Dr. Musacco's diagnoses, the ALJ found that Plaintiff's "borderline intellectual functioning" was a severe impairment but did not meet or equal a Listed impairment. (AR 19, 21.) He found that Plaintiff's test results were invalid and that "[n]o work-related psychological impairments were suggested," in Dr. Musacco's report. (AR 21.) The ALJ noted that Dr. Musacco failed to assess functional impairments corresponding to his diagnoses, so the ALJ determined on his own that Plaintiff's borderline intellectual functioning caused "mild to moderate impairments in capacities to understand and remember instructions, sustain concentration and persistence, socially interact with the general public, and adapt to workplace changes." (AR 19.)

Plaintiff argues that the ALJ erred by failing to note the IQ scores derived from Dr. Musacco's testing and analyze them under Listing 12.05. (Joint Stip. at 3.) The Agency counters that, because the ALJ found that the scores were invalid, he was not required to discuss the test scores or the Listing requirements in any detail. See, e.g., Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 1990) (holding that the Agency's failure to discuss why claimant did not satisfy the Listed impairments did not compel reversal where it set forth an "adequate statement of the foundations on which the ultimate factual conclusions are based."). For the reasons explained below, the Court finds that the ALJ erred in not further developing the record relating to whether Plaintiff was malingering during Dr. Musacco's testing and remand is warranted on this issue.

An ALJ has a "special duty to fully and fairly develop the record and to assure that the claimant's interests are considered," even when the claimant is represented by counsel. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (citation omitted). That duty is further heightened where the claimant may have a mental impairment. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). "The ALJ's duty to supplement a claimant's record is triggered by ambiguous evidence, the ALJ's own finding that the record is inadequate or the ALJ's reliance on an expert's conclusion that the evidence is ambiguous." Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).

The findings contained in Dr. Musacco's report were ambiguous. This is particularly true with regard to his finding regarding Plaintiff's suspected malingering. Dr. Musacco noted his suspicion that Plaintiff was malingering and recommended that the record be ...

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