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 supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
The procedural facts are undisputed and are summarized in the joint stipulation. Following a remand order issued by the Appeals Council, an administrative law judge (the "ALJ") denied benefits in a February 5, 2008 written hearing decision that constitutes the Commissioner's final decision in this case. [JS 2; Administrative Record ("AR") 5-7, 20-36]. The ALJ found that plaintiff had severe impairments consisting of substance use disorder, borderline intellectual functioning, and hepatitis C. [AR 23]. The ALJ concluded that plaintiff's impairments left him "mentally unable to complete a full work day on a regular and continuing basis," but that if plaintiff stopped using alcohol, he would be able to perform work available in significant numbers in the national economy. [AR 29-36]. Accordingly, the ALJ concluded that alcohol use was a contributing factor material to the disability determination, and that plaintiff was "not disabled" through the date of the ALJ's decision.*fn1 [JS 2; AR 36].
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)).
Plaintiff contends that the ALJ failed properly to consider whether plaintiff's impairments met or equaled the listing for mental retardation in 20 C.F.R. Part 404, Subpart P, Appendix 1, section 12.05C. [JS 3-11].
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.
"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 of the listing 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.
Section 12.05C states that a claimant must have "[a] valid verbal, performance, or full scale IQ of 60through 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, § 12.05C. 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.
Dr. Mark Pierce, a consultative psychologist retained by the Commissioner, conducted a psychological evaluation of plaintiff on September 11, 2007. [AR 409-419]. As part of his examination, Dr. Pierce administered a battery of psychological tests, including the Wechsler Adult Intelligence Scale -Third Edition ("WAIS-III"). [AR 409, 412-413]. Dr. Pierce reported that plaintiff attained a verbal IQ of 72, a performance IQ of 69, and a full-scale IQ of 68, placing him in the "borderline-to-top deficient range for verbal, performance, and full scale" IQ.*fn2 [AR 316-317]. Dr. Pierce's diagnostic impression was "dysthymic disorder," "alcohol abuse/dependence, chronic and continuing," and "borderline intellectual functioning." [AR 413-414]. He opined that plaintiff retained the capacity to perform at least simple, repetitive work. [AR 414]. He also concluded that plaintiff's alcohol dependence ...