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Robert Bennett v. Michael J. Astrue


August 8, 2011


The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge


The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of his consolidated applications for Supplemental Security Income. As discussed below, the court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.


Plaintiff Robert Levy Bennett*fn1 was born on September 30, 1964, and was forty-five years old at the time of the supplemental administrative hearing at issue here. [Administrative Record "AR" 841.] He has a limited education, was found to be able to communicate in English, and has past relevant work as a polishing machine operator. [AR 43, 655.] Plaintiff claims disability on the basis of back, neck, and left knee impairments, sleep apnea, high blood pressure, and mental problems. [See AR 642.]


Plaintiff filed the complaint in this matter on October 18, 2010. On May 19, 2011, Defendant filed an answer and Plaintiff's Administrative Record ("AR"). On July 25, 2011, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.


Plaintiff initially applied for Supplemental Security Income ("SSI") on August 14, 2001, alleging disability since July 4, 1998. After a hearing was held and Plaintiff's application was denied on January 26, 2004, [see AR 42-48, 608-34], Plaintiff sought review in this court.*fn2 While that initial appeal was pending, Plaintiff submitted additional material to the Appeals Council and filed another application for SSI benefits and an application for Disability Insurance Benefits ("DIB").

This court then approved a stipulation of voluntary remand and remanded the matter for further proceedings. [AR 667-68.] The Appeals Council directed the ALJ to associate all outstanding applications and to issue a decision on the consolidated claims. A supplemental hearing was held on March 30, 2010, at which Plaintiff appeared with counsel and testified. [AR 1063-96.] The ALJ also received testimony from vocational expert ("VE") Jeanine Metaldi. [AR 1088-96.]

The ALJ issued a decision denying benefits on May 5, 2010. [AR 640-656.] When the Appeals Council declined to assume jurisdiction, the ALJ's decision became the Commissioner's final decision. [See AR 635A-B.] This action followed.


Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's (or ALJ's) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.



To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated using a five-step test:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found "disabled" or "not disabled" at any step, there is no need to complete further steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non-adversarial, and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 1288. If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner (at step five) to prove that, considering residual functional capacity ("RFC")*fn3 , age, education, and work experience, a claimant can perform other work which is available in significant numbers. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920.


The ALJ found that Plaintiff does not meet the insured status requirements of the Social Security Act and that he has not engaged in substantial gainful activity since July 4, 1998, the alleged onset date (step one); that Plaintiff had the "severe" impairments of: status post IDET procedure*fn4 in October 2002, status post-arthroscopic surgery to the left knee in April 2005, status post-cervical spine surgery and fusion in August 2007, and borderline intellectual functioning (step two); and that Plaintiff did not have an impairment or combination of impairments that met or equaled a "listing" (step three). [AR 652.]

The ALJ further determined that Plaintiff had an RFC to perform sedentary, simple and repetitive work with the following additional limitations:

[L]ift and carry 10 pounds occasionally and less than 10 pounds frequently, sitting 6/8 hours, standing/walking 2-4/6 hours in 20-minute intervals, use of a cane for extended ambulation, must alternate sitting/standing every 30 minutes to relieve pain/discomfort, with a limitation to occasional climbing of ramps/stairs, balancing and stooping, a preclusion from climbing ladders/scaffolds, kneeling, crouching and crawling, occasional reaching bilaterally and an avoidance of concentrated exposure to machines and heights. [Id.] The ALJ found this RFC precluded Plaintiff from performing his past relevant work (step four). [AR 642, 655.] Nonetheless, given Plaintiff's RFC, age, education, and work experience, the ALJ concluded there were jobs that existed in significant numbers in the national economy that the Plaintiff could perform (step five). [AR 655.] Accordingly, Plaintiff was not "disabled" within the meaning of the Social Security Act. [AR 656.]


The parties' Joint Stipulation identifies one disputed issue, whether the ALJ erred in concluding Plaintiff's mental functioning does not meet or equal a listing level impairment. [JS 3.]


Plaintiff contends the ALJ erred because the evidence shows he has a full scale I.Q. score of 70, which he contends renders him presumptively disabled under Listing 12.05C, given that he also has been found to suffer from a physical impairment.

To "meet" a listing, a claimant must meet each characteristic of a listed impairment; to "equal" a listing a claimant must show symptoms, signs, and laboratory findings at least equal in severity and duration to characteristics of a relevant listing, i.e., of the listed impairment "most like" the claimant's impairment. Tackett, 180 F.3d at 1099; 20 C.F.R. § 404.1526. An ALJ is required to evaluate all relevant evidence before finding a plaintiff's impairments do not meet or equal a listing -- "[a] boilerplate finding is insufficient." Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)).

Listing 12.05C, relating to mental retardation, states in relevant part:

12.5 Mental retardation: 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.

* * * C. 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. Part 404, Subpt. P., App. 1, Listing 12.05C.

To meet this listing, a claimant must satisfy the diagnostic description in the introductory paragraph as well as one of the four sets (A through D) of possible criteria. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(A).

Plaintiff argues he meets this listing because he was found to have a physical impairment and a full scale I.Q. score of 70. His argument centers on the report of a psychological consultative examiner, Halimah McGee, Ph.D., who assessed plaintiff using a range of tests of his mood, attention, and cognition. [See AR 918-23.] Among other findings, Dr. McGee assessed plaintiff with verbal I.Q. of 72, performance I.Q. of 74, and full-scale I.Q. of 70, and concluded Plaintiff's overall intellectual capacity is in the "borderline" range. [AR 921-22.]

The ALJ considered Dr. McGee's report and adopted the ultimate finding that Plaintiff has, overall, "borderline" intellectual functioning. [AR 652, 648, 651.] In so doing, the ALJ mentioned the full scale IQ assessment [AR 648], but did not specifically address whether Plaintiff meets the requirements for listing 12.05C or the breadth of his intellectual impairment.

Defendant argues that a finding of borderline intellectual functioning is proper here, in that Dr. McGee did not find Plaintiff to have "significantly subaverage general intellectual functioning," and based upon other evidence of record and the doctor's report as a whole. [JS at 10; AR 921-22.] Also of note, the ALJ did conclude Plaintiff is not as "mentally impaired and non-functional as he claims." [AR 651, 654.] Defendant does not establish, however, that a claimant must show intellectual functioning below the range of borderline in order to satisfy this listing. See Lewis v. Astrue, 2008 WL 191415, at *5 (N.D. Cal. Jan. 22, 2008). A district court is constrained to review the reasons that the ALJ asserts for his decision and may not affirm the decision based on reasons or grounds that the Commissioner did not invoke. Stout v. Commissioner, 454 F.3d 1050, 1054 (9th Cir. 2006); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Moreover, while a valid I.Q. score need not be conclusive of mental retardation if the score is inconsistent with other evidence of record, see Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.1992),*fn5 here, the ALJ did not explicitly consider listing 12.05; discuss whether, notwithstanding his full-scale I.Q. score, Plaintiff is or is not operating under "significantly subaverage general intellectual functioning" and what evidence supports or detracts from such a finding; or evaluate whether there is any evidence suggesting this impairment may have manifested during the developmental period. Thus, the court is unable to gauge whether the ALJ specifically and reasonably rejected the suggestion that the full scale I.Q. score indicates mental retardation, or simply overlooked the possibility. This was in error. An ALJ must make sufficiently full and detailed findings of the facts essential to the decision so that a reviewing court may determine the basis for the decision and whether substantial evidence supports it. See Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th Cir. 1981).

Consequently, reversal is warranted.


The decision whether to remand for further proceedings is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id., 211 F.3d at 1179 (decision whether to remand for further proceedings turns upon their likely utility). When, however, there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id.

Here, it is not clear that even if the full scale I.Q. score were credited -- which it evidently was, at least to some extent -- Plaintiff would be deemed to meet the applicable listing. Accordingly, remand for further proceedings is appropriate.


Accordingly, IT IS ORDERED that:

1. The decision of the Commissioner is REVERSED.

2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings.

3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.

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