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Gomez v. Astrue

February 10, 2010


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are undisputed and are summarized in the joint stipulation. Plaintiff filed benefits applications on June 25, 2004, alleging disability beginning September 19, 2001 due to diabetes, blindness, hypertension, and hypercholesterolemia. [JS 2; Administrative Record ("AR") 119, 202]. Plaintiff subsequently alleged disability due to a mental impairment as well. [AR 130, 311]. Plaintiff's application was denied initially and on reconsideration. [JS 2]. Following a total of three administrative hearings, an administrative law judge (the "ALJ") issued a written decision denying benefits on January 16, 2008. [JS 2; AR 19-29]. Plaintiff was represented by counsel during all three administrative hearings. [See AR 360-465].

The ALJ found that plaintiff had severe, medically determinable impairments consisting of diabetes mellitus with retinopathy and an affective mood disorder. The ALJ also found that plaintiff had medically determinable impairments that were not severe, namely, hypertension, controlled, with no end-organ damage; a foot ulcer secondary to diabetes mellitus; borderline intelligence; and a history of alcohol abuse, "reportedly in remission." [AR 21-22]. The ALJ determined that plaintiff's impairments did not meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "listing"). [AR 22-23]. The ALJ assessed plaintiff's residual functional capacity ("RFC") as follows:

[Plaintiff can] perform light work except that he is able to stand and/or walk up to four hours in an eight-hour workday or sit for eight hours in an eight-hour workday. He can occasionally climb ramps or stairs, bend, stoop, crouch, kneel, or crawl, and is precluded from work requiring balancing, work around hazardous or fast moving machinery or unprotected heights, and work requiring binocular or depth perception. [Plaintiff] can perform work involving three or four step simple repetitive tasks in an object oriented, relatively habituated work setting. [Plaintiff] should not perform work activity requiring safety operations or hypervigilance, or work that entails intense interpersonal contact with co-workers, supervisors, or the general public. [AR 23]. The ALJ found that plaintiff's RFC precluded him from performing his past relevant work, but did not preclude performance of jobs that exist in significant numbers in the national economy. Accordingly, the ALJ concluded that plaintiff was not disabled at any time through the date of his decision. [AR 27-28]. The Appeals Council denied plaintiff's request for review. [AR 4-7].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Listing of impairments

The ALJ found that plaintiff did not meet or equal section 12.04 of the listing, "Affective Disorders," or section 12.07 of the listing, "Somatoform Disorders." [AR 22-23]. Plaintiff contends that he has valid IQ and other functional limitations that meet section 12.05 of the listing, "Mental Retardation," and therefore that the ALJ erred in failing to find him disabled at step 3 of the sequential evaluation procedure.*fn1 [See JS 6-17].

A claimant is presumptively disabled and entitled to benefits if he or she meets or equals a listed impairment. To "meet" a listed impairment, a disability claimant must establish that his condition satisfies each element of the listed impairment in question. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). To "equal" a listed impairment, a claimant "must establish symptoms, signs, and laboratory findings" at least equal in severity and duration to each element of the most similar listed impairment. Tackett, 180 F.3d at 1099-1100 (quoting 20 C.F.R. 404.1526); see Sullivan, 493 U.S. at 531.

In order to meet most of the mental disorder listings, a claimant must demonstrate the existence of impairment-related functional limitations that are incompatible with the ability to do substantial gainful activity and that are the result of the mental disorder described in listing, which must be manifested by the medical findings specified for that disorder. Section 12.05 does not follow that pattern. "The structure of the listing for mental retardation (12.05) is different from that of the other mental disorders listings. Listing 12.05 contains an introductory paragraph with the diagnostic description for mental retardation. It also contains four sets of criteria (paragraphs A through D). If [a claimant's] impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that [the claimant's] impairment meets the listing." 20 C.F.R. Pt. 404, Subpt. P, App.1, § 12.00A.

The introductory paragraph of section 12.05 states: "Mental retardation 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. [¶] The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.

To satisfy section 12.05B, plaintiff must have "[a] valid verbal, performance, or full scale IQ of 59 or less[.]" To satisfy section 12.05C, plaintiff must 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[.]" 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. When a claimant's verbal, performance, and full scale IQs differ, "the lowest of these [is used] in conjunction with 12.05." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00.6.c. While "it is preferable to use IQ measures" that "test both verbal and performance abilities," exceptions to this requirement may be made in "special circumstances, such as the assessment of individuals with sensory, motor, or communications abnormalities . . . ." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00.6.d.

Plaintiff's IQ

Dr. Clifford Taylor, one of the consultative psychological examiners who evaluated plaintiff, administered a battery of psychological tests, including the Wechsler Adult Intelligence Scale - Third Edition ("WAIS-III"), during his examination of plaintiff on May 15, 2006. [AR 314-320]. Dr. Taylor reported that plaintiff attained a verbal IQ of 61, a performance IQ of 60, and a full-scale IQ of 58, "placing him in the mild to moderate range of mental retardation on a measure of cognitive functioning. His intelligence is estimated to be in the low-average range."*fn2 [AR 316-317]. Dr. Taylor's psychological diagnoses were depressive disorder not ...

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