Argued and Submitted, San Francisco, California:
February 14, 2014.
Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:10-cv-01997-JLT. Jennifer L. Thurston, Magistrate Judge, Presiding.
The panel reversed the district court's order affirming the Commissioner of Social Security's denial of benefits on the basis that the claimant was not intellectually disabled.
The panel held that the administrative law judge (" ALJ" ) had a duty to order further IQ testing, and concluded that the ALJ's failure to do so was error that cannot be considered harmless. The panel remanded to the district court with instructions to reverse the final decision of the Commissioner and to order the Commissioner to develop the record through further IQ testing.
Judge O'Scannlain dissented because he believed that the majority erroneously presumed that the Commissioner's ostensible error prejudiced the claimant. Judge O'Scannlain also was unconvinced that the ALJ erred by not ordering a new and complete round of IQ tests.
Lawrence David Rohlfing (argued), Law Offices of Lawrence D. Rohlfing, Santa Fe Springs, California, and Cyrus Safa, Grancell, Stander, Reubens, Thomas and Kinsey, San Diego, California, for Plaintiff-Appellant.
Donna Wade Anderson (argued), Supervisory Attorney, and Patrick William Snyder, Special Assistant United States Attorney, Social Security Administration Office of General Counsel, San Francisco, California, for Defendant-Appellee.
Before: Alex Kozinski, Chief Judge, and Diarmuid F. O'Scannlain and Mary H. Murguia, Circuit Judges. Opinion by Judge Murguia; Dissent by Judge O'Scannlain.
MURGUIA, Circuit Judge:
Stephanie Garcia appeals from the district court's order affirming the Commissioner of Social Security's (the " Commissioner" ) denial of benefits on the basis that she was not intellectually disabled. Garcia argues that the administrative law judge (ALJ) who determined that she was not disabled had a duty to develop the record because that record did not include a complete set of valid IQ scores. We agree that the ALJ had a duty to order further IQ testing, and we further conclude that the ALJ's failure to do so was an error that cannot be considered harmless. We therefore reverse the district court and remand for further proceedings.
As a minor, Stephanie Garcia received social security benefits because of her intellectual disability. After she reached the age of 18 in 2007, the Social Security Administration (SSA or the " Administration" ) concluded that she no longer qualified as disabled and was therefore not entitled to further benefits. Garcia sought review by an ALJ, before whom she had a hearing on April 8, 2010. At the time of her hearing, Garcia lived with her mother and two siblings, as well as her own disabled daughter. Although she had learned some skills for caring for herself through an independent
living program, Garcia was dependent on her mother for her own care and for the care of her child. After taking special education classes, Garcia earned a high school diploma, but she was unable to read and did not know the alphabet.
Garcia worked part-time at a pizza shop for several months in 2008. She testified to having had difficulty with making pizzas, taking orders, and cashiering; as a result, she required constant supervision. She quit because she found the work " too hard." Garcia was then placed in a clerical job by the California Department of Rehabilitation; her duties included photocopying, alphabetizing files, and removing staples from documents. She worked four or five hours per day, five days per week. She testified at her hearing that she had difficulty understanding how to perform the tasks assigned to her and had to rely on a coworker for help. Garcia also quit this job after two months because " [i]t was too hard." Vicky Medina, Garcia's counselor at the Central Valley Regional Center, testified that, based on her observations, Garcia would be unable to " do any job eight hours a day, five days a week as it would be performed in the national economy without extra supervision." Medina explained that Garcia has difficulty remembering how to perform tasks, and that she needs to be re-taught " on a constant basis."
Apart from her intellectual disability, Garcia has suffered from depression stemming from having to care for her young daughter, who has Down Syndrome, asthma, and heart and thyroid problems. Garcia has been treated for her depression, and her psychiatric condition has improved.
In evaluating Garcia's disability claim, the ALJ considered the reports of three experts: psychologist Mary K. McDonald, Ph.D., psychologist Allen Middleton, Ph.D., and physician Evangeline Murillo, M.D.
On February 13, 2008, Dr. McDonald evaluated Garcia at the request of the California Department of Social Services. Dr. McDonald administered the Bender Visual Motor Gestalt Test, II Edition; the Wechsler Memory Scale, III Edition; and the Wechsler Adult Intelligence Scale, III Edition (" WAIS-III" ). The WAIS-III measures an individual's " intelligence quotient," or " IQ" ; IQ is reported as three scores: verbal, performance (non-verbal), and full scale. See 20 C.F.R. § 404, subpt. P, app. 1, listing 12.00 (" Listing 12.00" ) (D)(6). Garcia's scores on the Motor Gestalt Test were average to low average, and her Memory Scale scores indicated that her " [v]erbal memory is impaired and visual memory is within the low average range."
Dr. McDonald administered only the performance portion of the WAIS-III " [d]ue to the constraints of time and the slowness with which [Garcia] worked."  Consequently, Dr. McDonald did not report a verbal or full-scale score. Garcia's performance IQ score was 77, which is in the " borderline range" for disability. McDonald
concluded that Garcia was " capable of employment."
After reviewing Garcia's medical records, including the incomplete IQ test results, Dr. Middleton completed a Mental Residual Functional Capacity Assessment, Psychiatric Review Technique, and Case Analysis. He determined that Garcia was " moderately limited" in her " ability to [understand, remember, and carry out] detailed instructions." He concluded that Garcia was " able to understand and remember [work] locations [and] procedures of a simple, routine nature involving 1-2 step job tasks [and] instructions."
Dr. Murillo also reviewed Garcia's medical records, including the incomplete IQ results, and completed a Mental Residual Functioning Capacity Assessment and Case Analysis. Like Dr. Middleton, Dr. Murillo concluded that Garcia was " moderately limited" in her " ability to [understand, remember, and carry out] detailed instructions." She determined that Garcia could " understand and remember work locations and procedures of a simple, routine nature involving 1-2 step job tasks and instructions" and " maintain concentration and attention for above in 2 hour increments" during " 8 hr/40 hr work schedules."
At the hearing, the ALJ also heard testimony from vocational expert Thomas Dachelet. Dachelet testified that the ability to read and write at a basic level is a requirement for even those jobs classified by the Dictionary of Occupational Titles (DOT) as needing the lowest " general educational development." However, he also acknowledged that Garcia had worked at " light unskilled" jobs at which " she didn't read or write." Dachelet testified that in California " there were 1,020,830 persons employed at the light unskilled level." He identified three light unskilled jobs Garcia could perform: (1) a bagger, of which 44,304 were employed in California, (2) ...