Opinion
For Tamara D Ingram, Plaintiff: Bill LaTour, LEAD ATTORNEY, Bill LaTour Law Offices, Colton, CA.
For Carolyn W Colvin, Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Jennifer Lee Tarn, SAUSA - Office of the U.S. Attorney, Social Security Administration, San Francisco, CA.
ORDER AFFIRMING DECISION OF ADMINISTRATIVE LAW JUDGE
HON. MICHAEL R. WILNER, UNITED STATES MAGISTRATE JUDGE.
I. SUMMARY OF RULING
Plaintiff Ingram challenges the denial of her application for Social Security benefits. On appeal, Plaintiff contends that the Administrative Law Judge (ALJ) erred by failing to order additional IQ testing of Plaintiff.
The Court disagrees. The evidence of Plaintiff's IQ was neither ambiguous nor inadequate. As a result, the ALJ was not obliged to develop the medical evidence further. And, even if that determination was error, Plaintiff fails to convincingly demonstrate that she was materially prejudiced. If additional IQ testing had occurred, there is no non-speculative basis to conclude that Plaintiff could meet any listed impairment or have her residual functional capacity modified significantly. The Court affirms the ALJ's decision.
II. PLAINTIFF'S CONDITIONS AND PROCEEDINGS BELOW
Plaintiff applied for disability benefits. Plaintiff had a lengthy history of substance abuse. She also suffered from various physical conditions and personality disorders which she claimed prevented her from working.
After an administrative hearing, the ALJ found that several of Plaintiff's conditions, including polysubstance abuse, were " severe impairments" as that term is used under the federal regulations. (AR 20.) The ALJ further determined that Plaintiff's conditions met several listed impairments for substance abuse under agency regulations. (AR 20-22.)
However, the ALJ concluded that Plaintiff would not meet any listed impairment -- including the criteria for " intellectual disability" at Listing § 12.05 -- if Plaintiff stopped her substance use. (AR 22-23.) The ALJ also determined that, absent substance use, Plaintiff had the residual functional capacity (RFC) to perform light work with several significant non-exertional limitations and a restriction to 3-5-step tasks. (AR 24-25.)
At the hearing, a vocational expert testified that someone with Plaintiff's RFC could work a variety of jobs. From this, the ALJ found that, if Plaintiff stopped her substance use, she could perform work available in significant numbers in the national economy. (AR 25-26, 52-54.) Accordingly, the ALJ concluded that Plaintiff was not disabled and denied benefits. (AR 26.)
III. DISCUSSION
Plaintiff contends that the ALJ failed to develop the record regarding her intellectual capabilities.
A. Facts and Decision Below
Plaintiff had a long history of extreme substance abuse and unsuccessful attempts at maintaining sobriety. (AR 22, 24, 41.) Plaintiff completed an institutional drug and alcohol rehabilitation program about two months before her hearing. At the hearing, Plaintiff testified that she had been sober for approximately six months. (AR 34.)
A psychologist (Dr. Taylor) examined Plaintiff at the agency's request before the hearing. Plaintiff had been sober for about three months on the date of the examination. Dr. Taylor administered several tests, including an IQ test. Plaintiff received a full-scale IQ score of 69. The psychologist opined that Plaintiff was moderately to markedly impaired in numerous capacities. (AR 357-58.)
At the hearing, another psychologist (Dr. Malancharuvil) testified that Plaintiff did not meet or equal any listing since she became sober. (AR 37.) After reviewing all of Plaintiff's medical records, the doctor opined " if she's sober, she's still functional." (AR 39.)
Dr. Malancharuvil specifically addressed Plaintiff's low IQ score in his testimony. Dr. Malancharuvil explained that the IQ test result " was not meaningful" because Plaintiff had been sober less than four months when she took the test. He testified that Plaintiff needed " four to six months of sobriety to see whether the intellectual deterioration is permanent." (Id.) He also opined that it would be in Plaintiff's interest to take the test again. (Id.)
The ALJ relied upon the examining psychologist's opinions and Dr. Malancharuvil's testimony in determining that Plaintiff was disabled while under the influence of drugs and alcohol, but would not meet any listed impairment if she stopped the substance use. (AR 22-23.) The ALJ noted that Dr. Malancharuvil " explained that while there was evidence of borderline intellectual functioning, intellectual testing and the resulting IQ scores were depressed due to substance abuse and consequently failed to accurately reflect her intellectual function capabilities." (AR 22.) The ALJ did not send Plaintiff out for additional IQ testing, and her attorney did not submit additional evidence to the agency on this point. Nevertheless, the ALJ included several non-exertional limitations in the RFC.
The Court observes that the agency denied several previous disability benefits applications that Plaintiff pursued in the early 2000s. (AR 58.) In the most recent application (denied in 2005), Plaintiff asserted that her severe impairments consisted of scoliosis, depression, and substance abuse. The written decision from the ALJ in that case did not disclose any intellectual functioning deficit or low IQ score. (AR 59-60.)
B. Standard of Review and Relevant Law
Under 42 U.S.C. § 405(g), a district court may review the agency's decision to deny benefits. The ALJ's findings and decision must be upheld if they are supported by substantial evidence and are free of legal error. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). If the ALJ rejects significant probative evidence, the ALJ must explain why. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). The ALJ satisfies this burden by summarizing the facts and conflicting medical evidence and stating the ALJ's interpretations and findings. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
An ALJ has a " special duty to fully and fairly develop the record and to assure that the claimant's interests are considered" even when the claimant is represented by an attorney. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). However, it remains the claimant's duty to prove she is disabled and to produce evidence supporting a disability claim. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). The ALJ's duty to develop the record is triggered only when there is " ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Ludwig v. Astrue, 681 F.3d 1047, 1054 n.30 (9th Cir. 2012).
An ALJ commits legal error by basing a disability determination on an IQ test that is facially incomplete. Garcia v. Comm'r Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). Moreover, an ALJ " cannot disregard a valid IQ score simply because other evidence in the record could support a finding of nondisability in the absence of such a score." Gomez v. Astrue, 695 F.Supp.2d 1049, 1057 (C.D. Cal. 2010). However the Ninth Circuit " do[es] not doubt that an ALJ can decide that an IQ score is invalid" and adequately explain that determination in the written decision. Thresher v. Astrue, 283 F.App'x 473, 475 (9th Cir. 2008).
If an ALJ commits error by failing to obtain additional evidence on a claimant's behalf, the matter is reviewed for harmless error. McLeod v. Astrue, 640 F.3d 881, 886 (9th Cir. 2010). Reversal " is not automatic, but requires a determination of prejudice." Ludwig, 681 F.3d at 1054. Among other things, a reviewing court must consider " the likelihood that the result would have been different" but for the error, and " the impact of the error on the public perception" of the proceeding. Shinseki v. Sanders, 556 U.S. 396, 411-12, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009). If the " circumstances of the case show a substantial likelihood of prejudice, remand is appropriate[.] By contrast, where harmlessness is clear and not a borderline question, remand for reconsideration is not appropriate." McLeod, 640 F.3d at 888.
C. Analysis
Plaintiff fails to demonstrate that the ALJ prejudicially erred in rejecting her subpar IQ score or not sending Plaintiff for an additional set of intelligence tests. As a result, the Court must affirm the ALJ's decision.
The ALJ expressly considered -- and rejected -- the evidence of Plaintiff's low IQ score. The ALJ specifically relied on Dr. Malancharuvil's uncontroverted testimony that Plaintiff's IQ score was " depressed" because Plaintiff had not been sober long enough to obtain accurate results. (AR 22.) The ALJ provided a sufficient and legitimate explanation as to why he declined to consider this evidence. Tommasetti, 533 F.3d at 1041. That explanation adequately explained why the ALJ believed the test score to be invalid. Thresher, 283 F.App'x at 475; Gomez, 695 F.Supp.2d at 1057.
So, having properly disregarded what the ALJ concluded was an invalid test result, was the ALJ required to obtain a new IQ test for Plaintiff? No, because Plaintiff cannot demonstrate that the evidence presented to the ALJ was ambiguous or inadequate to allow proper consideration of her claim. Ludwig, 681 F.3d at 1054 n.30. The IQ test that Dr. Taylor performed was not incomplete or ambiguous; rather, it did not establish Plaintiff's intellectual capacity while sober for a prolonged period of time. Garcia, 768 F.3d at 929. Given that the ALJ provided a legitimate reason for rejecting that evidence, it was Plaintiff's burden to produce additional evidence to support her claim. She did not do so, though, and offered no other proof of her low intellectual functioning. The lack of probative evidence (even in the face of a specialist suggesting that an updated test could be beneficial) is insufficient to trigger an ALJ's duty to develop the evidentiary record. Mayes, 276 F.3d at 459.
The Court notes that the Taylor evaluation was itself conducted at the agency's request (AR 350); Plaintiff presented no evidence from a treating professional regarding her IQ.
Even if the ALJ erred by failing to order another IQ test for Plaintiff, the Court concludes that this error was harmless. McLeod, 640 F.3d at 886. Plaintiff offers no proof that a new IQ test would result in a similar or worse score as the discredited result that Dr. Taylor obtained. Indeed, based on Dr. Malancharuvil's testimony that the Taylor score was " depressed" due to Plaintiff's then-recent sobriety, it is likely that an updated IQ test would return higher results. Plaintiff's speculation about what her new IQ score would be is insufficient to demonstrate prejudice, particularly if she were to do better on a new exam. Ludwig, 681 F.3d at 1054.
Moreover, the government cogently notes that, even if a re-test led to a qualifying IQ score under Listing 12.05, Plaintiff has not presented any evidence regarding the other required component on the listed impairment. (Docket # 15 at 7 n.2.) All of the four permutations for the " intellectual disability" impairment under Listing 12.05 require proof that a claimant's " subaverage intellectual functioning [ ] initially manifested before age 22." Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013). Yet, nothing in the parties' submissions or the ALJ's written decision suggests that Plaintiff presented any evidence of this element. That means that Plaintiff could not plausibly have established that she met the listed impairment even with a favorable IQ score. Under the circumstances of the case, this is not a " borderline" decision, but a clear lack of proof that Plaintiff could have met the objective criteria for the impairment. McLeod, 640 F.3d at 888.
That conclusion is buttressed by the result of the previous disability adjudication. The earlier agency decision did not refer to any mental impairment or intellectual function problems when Plaintiff was young, and led to a similar RFC that precluded Plaintiff from performing complex tasks. (AR 24, 59.) The Court has no basis to conclude that additional evidence would lead to more restrictive limitations at a time when Plaintiff's sobriety would surely result in a greater capability to work.
At bottom, the Court concludes that the expert's candid -- or, perhaps, hopeful -- suggestion that Plaintiff should retake the IQ test is insufficient to warrant remand. The ALJ was not obliged to implement this suggestion, and any error in failing to do so was surely harmless based on a review of the evidence. The ALJ's decision will be affirmed.
IV. CONCLUSION
The ALJ's denial of Plaintiff's application for disability benefits was supported by substantial evidence in the record and contained no legal error. Therefore, the Court AFFIRMS the decision.
IT IS SO ORDERED.
JUDGMENT
It is the judgment of this Court that the decision of the Administrative Law Judge is AFFIRMED. Judgment is hereby entered in favor of Defendant.