Thomas G Lawrence v. Commissioner of Social Security Administration, No. 5:2010cv01296 - Document 14 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 THOMAS G. LAWRENCE, 12 Plaintiff, 13 14 15 vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 10-01296 RZ MEMORANDUM OPINION AND ORDER 17 An applicant for Social Security disability payments who is not working and 18 who has a severe impairment is deemed disabled if he meets one of the listed impairments 19 found in 20 C.F.R., Part 404, Appendix I. Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 20 1996). Plaintiff Thomas G. Lawrence contends that he met Listing 12.05, mental 21 retardation. 22 Administrative law Judge did not address this Listing. Under the circumstances of this 23 case, this was error. While an administrative law judge is not required to state precisely 24 why particular elements of a Listing have not been met, Gonzalez v Sullivan, 914 F.2d 25 1197, 1201 (9th Cir. 1990), he is required to consider all applicable Listings. Burnett v. 26 Commissioner, 220 F.3d 112, 119-20 (3d Cir. 2000); Clifton v. Chater, 79 F.3d 1007, 1009 27 (10th Cir. 1996). 28 Although Plaintiff asserted that Listing 12.05 applied [AR 28], the 1 Although the Administrative Law Judge did not refer specifically to Listing 2 12.05, however, he did make findings that pertain to this Listing, and thus there is a record 3 to review. As pertinent here, Listing 12.05 provides as follows: 4 5 12.05 Mental retardation: Mental retardation refers to 6 significantly subaverage general intellectual functioning with 7 deficits in adaptive functioning initially manifested during the 8 developmental period; i.e., the evidence demonstrates or 9 supports onset of the impairment before age 22. 10 11 12 The required level of severity for this disorder is met when the requirements in A, B, C or D are satisfied. . . . 13 C. A valid verbal, performance, or full scale IQ of 60 14 through 70 and a physical or other mental impairment imposing 15 an additional and significant work-related limitation or function; 16 . . . 17 18 There are two basic components to this listing, the IQ score and the presence 19 of a physical or mental impairment. Although the Administrative Law Judge did not 20 address this Listing, he did address both of the Listing s requirements. As to the first of 21 these requirements, concerning a valid IQ of between 60 and 70, Plaintiff took an IQ test 22 on the Wechsler Adult Intelligence Scale. On that test, Plaintiff had a Verbal IQ of 65, a 23 Performance IQ of 63, and a Full Scale IQ of 61. [AR 310-11] All of these numbers 24 would have satisfied the first prong of the listing, requiring an IQ score of between 60 and 25 70 on any one of the scales. The Administrative Law Judge, however, stated that he placed 26 minimal reliance on this testing because the scores obtained are not reflective of actual 27 cognitive ability and were inconsistent with Plaintiff s having achieved certain grades in 28 high school and community college. The Administrative Law Judge found it difficult to -2- 1 believe that the community college would waste its time and scarce resources in teaching 2 Plaintiff automotive repair if such was beyond his capacity. [AR 16] 3 The Administrative Law Judge wrongly evaluated the IQ scores. There was 4 no evidence that the IQ test did not validly measure Plaintiff s IQ or, stated another way, 5 no evidence that the IQ tests were not, in the Administrative Law Judge s words, 6 reflective of actual cognitive ability. The Administrative Law Judge may have discretion 7 to reject the IQ scores if there are external reasons for believing that the scores are not 8 valid, since the regulation requires a valid IQ, but that was not the case here. A valid IQ 9 test measures what it is supposed to measure, 20 C.F.R. Part 404, Subpart P, Appx. 1 at 10 12.00(D)(5)(c)(1). Thus, when Listing 12.05(C) refers to a valid IQ, it refers to a score 11 that properly results from a valid test. Likewise, for the result not to be valid, there must 12 be some reason that the valid test produced a wrong result. Thus, for example, where an 13 applicant had not eaten for two days prior to the administration of the test, had been 14 drinking until two a.m. the night before the test, and the doctor administering the test 15 thought these factors might have lowered the score, the Administrative Law Judge properly 16 found the IQ score not valid, supplemented by other factors as well. See Maggard v. Apfel, 17 167 F.3d 376, 380 (7th Cir. 1999). Here, however, the administering psychologist did not 18 suggest that the scores themselves were invalid. In fact, the administering psychologist 19 also administered a test to determine if Plaintiff were malingering, and concluded that he 20 is not attempting to simulate cognitive impairment. [AR 311] While the treating 21 psychologist expressed surprise that Plaintiff could function as well as he could in certain 22 areas, and that he could pass other parts of the psychological examination given his IQ 23 score, there was no basis for saying that the IQ tests wrongly measured Plaintiff s cognitive 24 ability. 25 There was some evidence, however, that Plaintiff had the capability to do 26 certain things, such as pass special education courses in high school and certain courses in 27 community college. That information does not affect the validity of the IQ score. The 28 ability to function differs from the person s intellectual ability as measured by the IQ test. -3- 1 Thus, even if a person has the present capability to perform past relevant work (but is not 2 working at the time of the application), this would not gainsay the fact that the IQ score 3 placed the person within the Listing. Ambers v. Heckler, 736 F.2d 1467 (11th Cir. 1984). 4 In short, the Administrative Law Judge had no lawful basis for saying that the 5 IQ scores did not accurately measure Plaintiff s cognitive ability. 6 The second prong of Listing 12.05(C) is that the claimant must have, in 7 addition to the low IQ score, a physical or other mental impairment imposing an 8 additional and significant work-related limitation or function. Here, the comments of the 9 Administrative Law Judge as to Plaintiff s having passed special education classes and 10 certain community college classes in automotive repair, on their face, seem more pertinent. 11 However, this prong of the Listing in fact refers to something else. In Fanning v. Bowen, 12 827 F.2d 631, 633 (9th Cir. 1987), the Court of Appeals defined what this prong means: 13 14 We have not had prior occasion to interpret the second 15 prong of section 12.05(C). Other circuits have concluded that an 16 impairment imposes a significant work-related limitation of 17 function when its effect on a claimant s ability to perform basic 18 work activities is more than slight or minimal. . . . We agree and 19 adopt this standard. 20 21 (Citations omitted). While subsequent adjustment to the regulations may mean that 22 something more is required than a slight or minimal effect on a claimant s ability to 23 perform basic work activities, nevertheless a finding of an impairment at Step Two of the 24 sequential evaluation necessarily satisfies the second prong of ยง 12.05(C); Fanning, 827 25 F.2d at 633 n.3; Rhein v. Astrue, 2010 WL 4877796 at *10 (E.D. Cal. 2010). 26 The Administrative Law Judge here found that Plaintiff had two severe 27 impairments, cerebral palsy and depression. [AR 14] These findings were made at Step 28 -4- 1 two of the process, and are independent of Plaintiff s intellectual capacity as measured by 2 the IQ test. Therefore, the second prong of the Listing also was satisfied. 3 In this Court, the Commissioner argues that Plaintiff did not satisfy the 4 preamble to the listing. The preamble, however, does not impose additional requirements 5 other than the requirement that the mental retardation have manifested itself before the 6 claimant turned 22. If it is accepted that Plaintiff had mental retardation, he clearly had so 7 before he was 22; the IQ test referred to above took place when Plaintiff was eighteen. In 8 addition, an IQ test taken when Plaintiff was nine also showed mental retardation. [AR 9 384] There can be no legitimate dispute that the symptoms were present at the time 10 required by the regulations. 11 Since it is clear on the record that Plaintiff met Listing 12.05, nothing is to be 12 gained by sending this matter back to the agency for further hearing. The Court s 13 disposition of this matter makes it unnecessary to consider other errors claimed by Plaintiff. 14 The decision of the Commissioner is reversed, and the matter is remanded to the 15 Commissioner for the awarding of benefits.1 IT IS SO ORDERED. 16 17 DATED: September 2, 2011 18 19 20 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 1 Without explanation, the Administrative Law Judge also ruled that Plaintiff did not meet Listing 11.07. [AR 14] Under that Listing, a person with cerebral palsy who has an IQ of 70 or less (the regulation does not even say valid IQ ) is disabled. Since the Administrative Law Judge found that Plaintiff has cerebral palsy and the record establishes an IQ of less than 70, it appears that Plaintiff would satisfy this Listing also. However, Plaintiff does not raise the point to this Court, and so the Court does not make a ruling based on it. -5-

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