Kennedy v. Colvin

• Decision Date: 31 December 2013
• Docket Number: No. 12–55430.,12–55430.
• Citation: 738 F.3d 1172
• Parties: Richard T. KENNEDY, Plaintiff–Appellant, v. Carolyn W. COLVIN, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

738 F.3d 1172

Richard T. KENNEDY, Plaintiff–Appellant,

v.Carolyn W. COLVIN, Commissioner of Social Security, Defendant–Appellee.

No. 12–55430.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 8, 2013.

Filed Dec. 31, 2013.

Young Cho and Lawrence D. Rohlfing (argued), Law Offices of Lawrence D. Rohlfing, Santa Fe Springs, CA, for Plaintiff–Appellant.

André Birotte Jr., United States Attorney, Leon W. Weidman, Assistant United States Attorney, Chief, Civil Division, Francesco P. Benavides and Elizabeth Firer (argued), Special Assistant United States Attorneys, Social Security Administration, Office of the General Counsel, Region 9, San Francisco, CA, for Defendant–Appellee.

Appeal from the United States District Court for the Central District of California, Ralph Zarefsky, Magistrate Judge, Presiding. D.C. No. 2:11–cv–03 809–RZ.

Before: RAYMOND C. FISHER and RICHARD R. CLIFTON, Circuit Judges, and JAMES K. SINGLETON, District Judge.^*

OPINION

FISHER, Circuit Judge:

Richard Kennedy appeals an order of the district court affirming the decision to deny him supplemental security income benefits. He argues that he equals the listed impairment for intellectual disability because his physical impairments are so severe that they compensate for the one-point difference between his recorded IQ score and the score required under the listing. At the third step of the five-step sequence for evaluating disability claims, a claimant seeking supplemental security income benefits establishes a disability if he shows that he meets or equals a listed impairment. See20 C.F.R. § 416.920(a)(4)(iii). A claimant satisfies Listing 12.05C, demonstrating “intellectual disability” and ending the five-step inquiry, if he can show: (1) subaverage intellectual functioning with deficits in adaptive functioning initially manifested before age 22; (2) a valid IQ score of 60 to 70; and (3) a physical or other mental impairment imposing an additional and significant work-related limitation. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C. Kennedy, who has an IQ score of 71, acknowledges that he does not meet Listing 12.05C, but contends that he equals the listing. We conclude that he does not. A claimant must “present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), superseded by statute on other grounds as stated in Colon v. Apfel, 133 F.Supp.2d 330, 338–39 (S.D.N.Y.2001). Kennedy did not show that his impairments medically equal an IQ score of 60 to 70, so he has not shown equivalence to all three individual criteria under Listing 12.05C, and his condition thus does not equal the listing. We affirm.

BACKGROUND

In March 2008, Kennedy applied for supplemental security income benefits under Title XVI of the Social Security Act. See42 U.S.C. §§ 1381–83f. He claims that he has been disabled since August 2004.

Kennedy testified before an Administrative Law Judge (ALJ) that he has dyslexia, never graduated from high school and was diagnosed with sickle cell anemia when he was two years old. He also testified that he takes several medications, has chronic pain in his left hip, legs, shoulders and back, and sometimes cannot see out of his left eye.

Medical records showed that Kennedy has an extensive history of sickle cell anemia and related issues, including avascular necrosis. One doctor wrote in March 2007 that Kennedy had “painful range of motion of the hips particularly the left side,” but “[h]is pain level is not severe.” Another doctor wrote in July 2008 that “[i]t is possible that the claimant does have some left hip problems and perhaps does need some surgical intervention,” but “[h]e had full range of motion of the left hip,” “ambulated overall with ease” and “overall appears to be in good physical condition.” A psychologist who examined Kennedy in May 2008 found that he had a verbal IQ score of 71, a performance IQ score of 78 and a full-scale IQ score of 72. The psychologist diagnosed Kennedy with “[g]eneralized anxiety disorder” and “[b]orderline mental retardation.”

The ALJ evaluated Kennedy's application using the requisite five-step sequential evaluation process. See20 C.F.R. § 416.920(a)(4). The ALJ determined at the first step that Kennedy was not engaged in substantial gainful activity and at the second step that Kennedy had severe impairments, including sickle cell anemia, avascular necrosis and osteoarthritis of the hips, and borderline intellectual functioning.At the third step, which is at issue here, the ALJ found that Kennedy “does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments.” The ALJ specifically addressed Listing 12.05C and found that its requirements “are not met because [Kennedy] does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function.”

At the fourth and fifth steps, the ALJ found that Kennedy had no past relevant work but that he had a residual functional capacity that enabled him to perform a significant number of jobs in the national economy. The ALJ also noted “significant inconsistencies” between the medical records and Kennedy's testimony regarding the frequency of sickle cell crises, duration of hospital stays and severity of hip pain. Ultimately, the ALJ determined that Kennedy was not disabled for purposes of the Social Security Act.

The district court affirmed, ruling that Kennedy had “identified no alternative test or other medical findings that, if evaluated, might lead to a conclusion of medical equivalence” to Listing 12.05C. Kennedy appeals the order of the district court affirming the Commissioner of Social Security's final decision denying him benefits.

STANDARD OF REVIEW

“We review de novo a district court's order upholding a denial of social security benefits.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir.2003). “On de novo review, the decision of the Commissioner must be upheld if it is supported by substantial evidence and if the Commissioner applied the correct legal standards.” Id.

DISCUSSION

I.

The five-step process for disability determinations begins, at the first and second steps, by asking whether a claimant is engaged in “substantial gainful activity” and considering the severity of the claimant's impairments. See20 C.F.R. § 416.920(a)(4)(i)-(ii). If the inquiry continues beyond the second step, the third step asks whether the claimant's impairment or combination of impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P, app. 1 and meets the duration requirement. See id. § 416.920(a)(4)(iii). If so, the claimant is considered disabled and benefits are awarded, ending the inquiry. See id. If the process continues beyond the third step, the fourth and fifth steps consider the claimant's “residual functional capacity” in determining whether the claimant can still do past relevant work or make an adjustment to other work. See id. § 416.920(a)(4)(iv)-(v).

At the third step of the evaluation, a claimant's impairment or combination of impairments is medically equivalent to a listed impairment—establishing a disability and ending the five-step inquiry—if the claimant's impairment or combination of impairments “is at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 416.926(a). Listing 12.05, which can be met or equaled at the third step, explains that “[i]ntellectual disability 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.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05.¹ The listing further says that the level of severity for the intellectual disability impairment is met when any of four sets of additional requirements is satisfied. See id. The third of those four sets requires “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function.” Id. § 12.05C. Thus, Listing 12.05C has three main components: (1) subaverage intellectual functioning with deficits in adaptive functioning initially manifested before age 22; (2) an IQ score of 60 to 70; and (3) a physical or other mental impairment causing an additional and significant work-related limitation.

Kennedy raises just one issue on appeal. He concedes that he cannot meet Listing 12.05C because his IQ score for purposes of the evaluation is 71. ² He argues, however, that he medically equals Listing 12.05C because his physical impairments are so severe that they compensate for the onepoint difference between his IQ score and the score required under the listing. ³ Although there is some facial appeal to his argument, it is foreclosed by the Supreme Court's decision in Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).

II.

Zebley held that, “[f]or a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is ‘equivalent’ to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Id. at 531, 110 S.Ct. 885 (citing 20 C.F.R. § 416.926(a) (1989)). ⁴ “A claimant cannot qualify for benefits under the ‘equivalence’ step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment.” Id. The reason for this is clear. Listed impairments are purposefully set at a high level of severity because “the listings were designed to operate as a presumption of disability that makes further...