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Jones v. Colvin

United States District Court, Ninth Circuit

June 26, 2013

SHADANA L. JONES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

RALPH ZAREFSKY, Magistrate Judge.

The regulations governing Social Security disability claims contain a "Listing of Impairments, " specifying the characteristics of certain disabling impairments. 20 C.F.R. Part 404, Subpart P, Appendix 1. In Lester v. Chater, 81 F.3d 821 (9th Cir. 1996), the Ninth Circuit ruled that

Conditions contained in the "Listing of Impairments" are considered so severe that they are irrebuttably presumed disabling, without any specific finding as to the claimant's ability to perform his past relevant work or any other jobs. 20 C.F.R. ยง 404.1520(d). Claimants are conclusively disabled if their condition either meets or equals a listed impairment. 20 C.F.R. 404.1520(d).

Id. at 828 (emphasis in original). The ruling does not offer any wiggle room; such conditions are " irrebuttably presumed" disabling and claimants are " conclusively disabled" when a listing is met.

One of the listings covers mental retardation and, as pertinent here, provides:

12.05 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.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
...
B. A valid verbal, performance, or full scale IQ of 59 or less;
...

The Administrative Law Judge here found that Plaintiff Shadana Jones took two IQ tests. In the first, she obtained a full scale IQ of 43. In the second, she obtained a full scale IQ of 46. [AR 27] Both of these tests were taken in 2010 [ id. ]. The Administrative Law Judge also found that Plaintiff was born in 1990 [AR 25], meaning that she was under the age of 22 when the IQ tests were administered.

Under both of these tests, Plaintiff would be conclusively presumed to be disabled according to Listing 12.05(B). The regulations require, however, that a claimant have a valid IQ of 59 or less, and the Administrative Law Judge stated that the examining consultant found that the first test was not valid due to suboptimal performance. [AR 27] Thus, the first test was not a basis for a determination that Plaintiff was disabled under Listing 12.05(B).

As the Administrative Law Judge noted, Plaintiff registered a score of 46 on the second IQ test. The Administrative Law Judge did not find this score invalid, and he would not have been able to do so, given the statements of the consultant who administered the test. Far from finding that Plaintiff had used a suboptimal effort, as the first examiner noted, the second examiner stated that Plaintiff remained cooperative and complied with assessment directives; that she tried her best but exerted much effort when completing tasks, and that she was noticeably overwhelmed and sometimes confused, "suggesting that she had difficulties understanding what was being asked of her." [AR 856]. In short, the evidentiary record established that the IQ was valid, and accurately reflected Plaintiff's intelligence capability.

With a valid IQ score of 46, Plaintiff should have been determined to be disabled. However, the Administrative Law Judge rejected this second score for two reasons. First, he ruled that the assessment was made by a psychologist who evaluated the claimant on a single occasion. Second, he ruled that the score was not consistent with the claimant's school records going back through 1999 or with her activities of daily living. [AR 27] It is not clear whether the Administrative Law Judge thought these were reasons that the IQ was not "valid" or that they were reasons ...


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