Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Dec. 4, 1997.
Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding.
Before REAVLEY, GOODWIN, and KLEINFELD, Circuit Judges.
The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the 5th Circuit, visiting judge.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Appellant argues that there was not substantial evidence in the record as a whole to support the Commissioner's finding that she did not meet Listing 12.05(C). We conclude that there was. The listing requires an IQ no higher than 70 and another impairment:
A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function.
Appendix 1 § 12.05(C). Appellant's IQ tested at over 70. She tested at 74. This means that, whether she had another impairment or not, the quoted provision would not establish disability for purposes of an award.
Appellant correctly argues that IQ tests have a range of error, appellant sometimes tested at 72, and that the internal operating guidelines of the agency direct ALJ's to consider combinations of conditions when the IQ is below 75, as appellant's was. But in order to be found "disabled," appellant must show impairments "listed" or "equal to a listed impairment." 20 C.F.R. § 404.1520(d). Appellant is correct that the internal guidelines of the agency might allow an ALJ to find medical equivalence to a 70 IQ up to 75:
The criteria for [§ 12.05(C) ] are such that a medical equivalence determination would very rarely be required. However, slightly higher IQ's (e.g., 70-75) in the presence of other physical or mental disorders that impose additional and significant work-related limitation of function may support an equivalence determination. It should be noted that generally the higher the IQ, the less likely medical equivalence in combination with another physical or mental impairment(s) can be found.
POMS § 24515.056D.1.c. The Program Operations Manual System, Disability Insurance, is the policy and procedure manual used by Social Security Administration employees in evaluating claims. "[W]hile the guidelines do not have the force and effect of law, they are not of absolutely no effect or persuasive force." Evelyn v. Schweiker, 685 F.2d 351, 352 n. 5 (9th Cir.1982). Still, we cannot see how the internal guideline can raise the bar in the regulations, 70, to 75. It makes more sense to look at it as comparable to a police guideline not to ticket speeders unless they are going more than 10 miles per hour over the speed limit. That guideline would affect the enforcement policy, not the speed limit.
The ALJ perhaps could have found that appellant's other mental characteristics made her 74 or 72 IQ medically equivalent to a 70 IQ for purposes of getting and holding a job. But he did not. We must uphold the denial of disability benefits if it is supported by substantial evidence and the Commissioner applied the correct legal standard. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996). There was substantial evidence from which the ALJ could find the absence of such equivalence. The ALJ was not required to treat appellant's back problem as an alternative to an IQ no higher than 70. The Appendix 1 § 12.05(C) language is "IQ of 60 through 70 and a physical or other mental impairment" (emphasis added). So both are needed. Given the deferential standard of review we must apply, the ALJ could permissibly find the absence of this combination.
The regulations require that even if an impairment is "not the same as a listed impairment," the ALJ must determine whether it is "medically equivalent" to a listed impairment. 20 C.F.R. 1529(d)(3). Because equivalence is considered "based on medical evidence only," id., the practical equivalence in the job market of being only a little brighter than the IQ ceiling and also having a back problem is not the kind of equivalence to which the regulation refers. The ALJ could permissibly find on the record as a whole, and did, lack of equivalence, because the record allowed for the conclusion that appellant's intelligence was not medically equivalent to an IQ no higher than 70.
Appellant next argues that even if she is not entitled to the presumption based on a listed impairment, the Commissioner did not bear his burden of showing that she could perform types of work in the economy other than her old job, which she concededly could not perform. See 20 C.F.R. § 404.1520(a)-(f); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir.1990). There was testimony going both ways on whether, with her low IQ and back problems, appellant could perform any jobs available. The ALJ found that she could perform light work such as security guard, recreation aide, and assembler. Given appellant's history and the scantiness of evidence to support security guard and recreation aide, or more complex assembly, that part of his finding is certainly questionable. However, there is substantial evidence to support the ALJ's conclusion that she could perform the job of assembler.
This case does not have the close to retirement age fact emphasized as critical in Terry v. Sullivan, 903 F.2d 1273 (9th Cir.1990). Appellant's youth was a factor that tended to support the ALJ's determination. Mr. Tomita's testimony established that appellant could probably do such jobs as "let's say if you want to put together a plastic sprinkler," because it was sufficiently light duty with respect to the back, and involved no more than one or two intellectual steps. The ALJ elicited evidence from appellant, interspersed with Mr. Tomita's testimony, to assist him in evaluating it.
The record supports the finding that there are a significant number of jobs in the national economy that appellant could perform. Vocational expert Tomita testified that (1) "there are 600 assemblers in the DOT," of which 80 percent are light and "maybe 17 percent are sedentary," and (2) the job of assembler "existed in significant numbers" prior to 1983. ER 105, 109. From this information the ALJ determined that "hundreds of thousands of jobs" in the national economy exist. Although Tomita's testimony does not directly support the "hundreds of thousands" conclusion by the ALJ, the ALJ is permitted to "take administrative notice of reliable job information" in determining work that exists in the national ecomony. 20 C.F.R. § 404.1566. We cannot conclude that the ALJ's determination that appellant could perform other jobs, such as assembler, was unsupported by substantial evidence on the record as a whole.
AFFIRMED.