Unpublished Disposition, 940 F.2d 667 (9th Cir. 1991)

No. 90-55138.

United States Court of Appeals, Ninth Circuit.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and TROTT, Circuit Judges

MEMORANDUM^* 

This is an appeal from a district court judgment affirming an order of the Secretary denying Supplemental Security Income Disability Benefits. Appellant's claim for disability was based on mental retardation, migraine headaches, anxiety, and depression. The ALJ found that she had not met her initial burden to demonstrate her inability to perform her past relevant work as a presser and seamstress. She argues there was not substantial evidence to support the ALJ's decision, that the ALJ improperly concluded that she did not meet the listed impairment of mental retardation, and that the ALJ did not make adequate findings to disregard her testimony.

* We hold that there was substantial evidence to support the ALJ's decision. No examining physician testified that appellant had a condition that would disable her from working for a period of more than a year. Dr. Yetenekian opined that she was "temporarily disabled from all work," but concluded that "her prognosis for recovery is fair provided adequate support." Administrative Record (A.R.) at 148-49. Dr. Sweel opined that she could "maintain a regular work schedule, an ordinary routine without special supervision, make simple work-related decisions and complete a normal work day." A.R. at 129. Dr. Miles' report, which concluded that appellant could not return to work for two years, was not before the ALJ and appellant has not demonstrated good cause for the failure to place this evidence before the ALJ in the prior proceeding. See Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). The testimony of Dr. Sweel provided substantial evidence for the ALJ's conclusion that appellant was capable of working.

II

The ALJ also did not err in finding that appellant did not meet the listing for mental impairments under 20 C.F.R., ch. III, Part 404, Subpt.P.App. 1, part A, 12.05(C). Although appellant's IQ test scores on two occasions fell in the range of the listing, the doctor who administered the first test found that the scores should not be considered valid, and the doctor who administered the second test made no findings as to their significance. According to Part 404, Subpt.P.App. 1, part A, Sec. 12.00(D), test results should include a discussion of whether or not IQ scores are considered valid. Thus, the ALJ did not err in finding that the mere numerical scores without analysis or a diagnosis of mental retardation were insufficient to show that appellant met the listed mental impairment. The ALJ also considered the second IQ test to be unreliable because he mistakenly assumed it was administered through an interpreter. As appellant has pointed out, the second test was not translated, but was administered directly in Armenian, appellant's native language. Nonetheless, because the doctor provided no analysis of the scores, the ALJ's conclusion that the scores alone were not sufficient to show mental retardation must be affirmed.

We do not consider appellant's claim that her condition equals a listed impairment because it was not presented to the district court and because it was raised for the first time in appellant's reply brief. See Greenhow v. Sec'y of HHS, 863 F.2d 633, 638-39 (9th Cir. 1988); United States v. Kendrick, 692 F.2d 1262, 1265 n. 3 (9th Cir. 1982), cert. denied, 461 U.S. 914 (1983).

III

Finally, appellant appears to claim that the ALJ did not make sufficient findings to disregard her testimony that her impairments had worsened significantly since she stopped working. Here, however, there is no medical or corroborating lay evidence that appellant's condition changed since the time she was working. The only evidence that appellant's condition had worsened was her own testimony. The ALJ's conclusion that her testimony was insufficient to establish disability was supported by his findings that her testimony was not only uncorroborated by clinical or lay evidence but was also contradicted by Dr. Sweel's testimony that she was still able to work.

AFFIRMED.