Richard T Kennedy v. Michael J Astrue, No. 2:2011cv03809 - Document 20 (C.D. Cal. 2012)
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 RICHARD T. KENNEDY, 12 13 14 15 16 17 18 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 11-03809 RZ MEMORANDUM OPINION AND ORDER Plaintiff Richard T. Kennedy asserts that the Social Security Commissioner committed two errors that require reversal. The Court disagrees. 19 The Administrative Law Judge found that Plaintiff had the following severe 20 impairments: sickle cell anemia, avascular necrosis and osteoarthritis of the hips and 21 borderline intellectual functioning. [AR 18] However, Plaintiff contends that the 22 Administrative Law Judge should have found that Plaintiff equaled Listing No. 12.05C for 23 mental retardation. A person who meets or equals a listing, of course, is presumptively 24 disabled without further consideration. Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1996). 25 Listing 12.05C has two components. First, the claimant must have a valid 26 verbal, performance, or full scale IQ of 60 through 70. Second, the claimant must have a 27 physical or other mental impairment imposing an additional and significant work-related 28 limitation or function. Plaintiff concedes that he did not meet this listing, because he had 1 an IQ score of 71, one point outside the range identified by the first component of the 2 listing. 3 Plaintiff argues, however, that he equals the listing. He quotes an internal 4 Social Security operations manual that says, in part, that slightly higher IQ s (e.g., 70-75) 5 in the presence of other physical or mental disorders that impose additional and significant 6 work-related limitation of function may support an equivalence determination. (Plaintiff s 7 Memorandum in Support of Complaint 5: 7-9, citing POMS DI 24515.056.) Plaintiff then 8 argues that, because the Administrative Law Judge found that he was limited to sedentary 9 work, he has an additional and significant work-related limitation of function, and therefore 10 he should be deemed to equal the listing. 11 There are several things wrong with Plaintiff s argument. To begin with, the 12 internal operations manual POMS is just that an internal manual. It does not impose 13 judicially-enforceable duties on either the Court or the Administrative Law Judge. Its only 14 power is to persuade where there is an ambiguous regulation and then, of course, only if 15 it is persuasive. Carillo-Yeras v. Astrue, __ F.3d __, 2011 WL 5041912 at *3 (9th Cir. 16 October 25, 2011); Lockwood v. Commissioner, Social Security Administration, 616 F.3d 17 1068, 1072-73 (9th Cir. 2010). 18 Moreover, the interpretation Plaintiff places on the statement from POMS is 19 not in fact what POMS says. Plaintiff reads POMS as stating that, if the IQ score lies 20 between 70 and 75, then a claimant equals the listing if the claimant also has an additional 21 and significant functional limitation. This reading would change the regulation from 22 requiring an IQ below 70 to an IQ below 75. That is not a permissible reading. 23 Beyond all this, however, Plaintiff has misunderstood the concept of 24 equivalence of a listing. Equivalence requires medical equivalence. Equivalence must be 25 based on medical findings that are supported by medically acceptable clinical and 26 laboratory diagnostic techniques, and/or the opinions of doctors consulted by the 27 Commissioner. 20 C.F.R. § 404.1526. Those medical findings must be at least equal in 28 severity and duration to the listing findings 20 C.F.R. § 404.1526(a). Conflating the two -2- 1 components of Listing 12.05C into a single component does not comport with the 2 requirement of showing equivalent medical findings. See Brouse v. Chater, 161 F.3d 11, 3 1998 WL 567964 (9th Cir. 1998) (unpublished opinion). 4 The Plaintiff must show at least a plausible theory that there is such medical 5 equivalence, Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001); otherwise, the Court cannot 6 say that the Administrative Law Judge s finding that Plaintiff does not meet or equal a 7 listing is clearly erroneous. If, for example, there were an alternative test that might be 8 equivalent to the IQ requirement of between 60 and 70, then the Administrative Law Judge 9 would have been required to evaluate the alternative test and explain if it met the test of 10 medical equivalence. Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). Here, 11 however, Plaintiff has identified no alternative test or other medical findings that, if 12 evaluated, might lead to a conclusion of medical equivalence. Under those circumstances, 13 the Administrative Law Judge was not required to make any further equivalence 14 determination than he did. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). 15 Plaintiff places much reliance on Fanning v. Bowen, 827 F.2d 631 (9th Cir. 16 1987), but that case does not help him. Fanning enunciated the standard for evaluating the 17 second component of § 12.05C, holding that an impairment imposes a significant work- 18 related limitation of function when its effect on a claimant s ability to perform basic work 19 activities is more than slight or minimal. 827 F.2d at 633. This standard since has been 20 supplanted by regulation, and the standard now is that the impairment must be severe as 21 that term is used in 20 C.F.R. § 404.1520(c) and 20 C.F.R. § 416.920(c). See Rhein v. 22 Astrue, 2010 WL 4877796 at *10 (E.D. Cal. 2010). Whatever the standard, however, the 23 issue is not what is required under the second component. Plaintiff satisfies the second 24 component. Simply satisfying that component, however even if, as Plaintiff argues 25 here, he really satisfied it because he is significantly impaired does not constitute 26 medical equivalence. 27 Plaintiff makes an additional argument for reversal. Plaintiff also asserts that 28 the Administrative Law Judge did not identify alternate occupations within Plaintiff s -3- 1 remaining functional capabilities. Plaintiff s argument here is that the occupations require 2 a greater language aptitude than he possesses. The problem with his argument, however, 3 is that it is built on speculation. Plaintiff asserts that a person with his IQ falls within the 4 bottom three percent of the population, but that the occupations identified by the 5 Administrative Law Judge are occupations that require a general language aptitude 6 possessed by the bottom third of the population, excluding the top (Plaintiff says bottom, 7 but the scale itself says top, Plaintiff s Memorandum at 9-2) ten percent. Missing from this 8 creative argument, however, is any demonstrated correlation between IQ tests and general 9 language aptitude. The Labor Department s aptitude scale does not reference IQ tests, and 10 just because both IQ tests and the aptitude scales refer to percentages of the population 11 does not mean that the findings are interchangeable. To make the point more stark, one 12 might look at one of the other aptitudes classified by the Labor Department, such as motor 13 coordination. A person falling within the bottom ten percent on that aptitude nevertheless 14 could be a genius as measured on the IQ test. There simply is no basis, on the record 15 created before the Commissioner, for giving credence to Plaintiff s argument here. See 16 Ariola v. Astrue, 2009 WL 1684542 at *6 (C.D. Cal. 2009); Vasquez v. Astrue, 2009 WL 17 3672519 at *3 (C.D. Cal. 2009). 18 In accordance with the foregoing, the Commissioner s decision is affirmed. 19 20 DATED: January 13, 2012 21 22 23 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 -4-
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