Richard Kennedy v. Carolyn W. Colvin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD T. KENNEDY, No. 12-55430

Plaintiff-Appellant,

D.C. No.

v. 2:11-cv-03809-

RZ

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Ralph Zarefsky, Magistrate Judge, Presiding

Argued and Submitted

November 8, 2013—Pasadena, California

Filed December 31, 2013

Before: Raymond C. Fisher and Richard R. Clifton, Circuit

Judges, and James K. Singleton, District Judge.*

Opinion by Judge Fisher

*

The Honorable James K. Singleton, Senior United States District Judge

for the District of Alaska, sitting by designation.

2 KENNEDY V. COLVIN

SUMMARY**

Social Security

The panel affirmed the district court’s judgment affirming

the Commissioner of Social Security’s denial of claimant’s

application for supplemental security income benefits under

the Social Security Act.

At step three of the five-step sequence for evaluating

disability claims, a claimant seeking supplemental security

income benefits establishes a disability if he meets or equals

a listed impairment. The claimant alleged that he medically

equaled Listing 12.05C because his physical impairments

were so severe that they compensated for the one-point

difference between his IQ score and the score required under

the Listing.

The panel held that the claimant was required to

demonstrate that he medically equaled each of the individual

criteria under Listing 12.05C, and concluded that he failed to

do so.

COUNSEL

Young Cho and Lawrence D. Rohlfing (argued), Law Offices

of Lawrence D. Rohlfing, Santa Fe Springs, California, for

Plaintiff-Appellant.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KENNEDY V. COLVIN 3

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, California, for Defendant-Appellee.

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. See

20 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

4 KENNEDY V. COLVIN

similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521,

531 (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. See 42 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

KENNEDY V. COLVIN 5

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. See

20 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,

6 KENNEDY V. COLVIN

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. See 20 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).

KENNEDY V. COLVIN 7

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

1

The “intellectual disability” impairment listed under § 12.05 was

formerly referred to as “mental retardation.” The substance of the listing

has not changed.

8 KENNEDY V. COLVIN

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 one-

point 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 (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 (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

2

Under 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(D)(6)(c), “[i]n cases

where more than one IQ is customarily derived from the test administered,

e.g., where verbal, performance, and full scale IQs are provided in the

Wechsler series, we use the lowest of these in conjunction with 12.05.”

3

The parties have placed only the second element of Listing 12.05C in

issue. The parties do not appear to dispute that Kennedy meets or equals

the first and third elements.

4

Though the language of § 416.926(a) has changed since 1989, the

regulation’s substance has not been altered in a manner that casts doubt on

Zebley’s continuing validity in this context.

KENNEDY V. COLVIN 9

presumption of disability that makes further inquiry

unnecessary.” Id. at 532. When a claimant meets or equals

a listing, “he is presumed unable to work and is awarded

benefits without a determination whether he actually can

perform his own prior work or other work.” Id. Listed

impairments set such strict standards because they

automatically end the five-step inquiry, before residual

functional capacity is even considered.

Since Zebley, we have followed this approach, requiring

claimants to equal each criterion of Listing 12.05C rather than

relying on overall functional impact. Specifically, in Lewis

v. Apfel, 236 F.3d 503 (9th Cir. 2001), we held that a claimant

offered no plausible theory for how his seizure disorder and

“mental retardation” combined to equal Listing 12.05C when

his IQ measured higher than 70, noting that the claimant “has

shown no evidence that his seizures had even a temporary

effect of lowering his IQ.” Id. at 514. For instance, “[h]e

might have argued that grogginess from his medications and

seizures exacerbated the effect of his mental retardation, but

the ALJ explicitly rejected Lewis’s claim of grogginess.” Id.

In another case quite similar to the situation here, we

considered the medical equivalency doctrine so well

established that we affirmed the ALJ’s finding of non-

equivalency in a non-precedential disposition, holding that a

claimant with an IQ over 70 did not show that she equaled

Listing 12.05C:

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. . . . The ALJ was not required

to treat appellant’s back problem as an

10 KENNEDY V. COLVIN

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. . . .

. . . Because equivalence is considered “based

on medical evidence only,” 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.

Brouse v. Chater, 161 F.3d 11, 1998 WL 567964, at *2 (9th

Cir. Aug. 25, 1998) (unpublished) (citation omitted).

Similarly, Kennedy has not advanced an argument or

offered evidence for equaling Listing 12.05C that conforms

to Zebley. He argues only that his severe physical

impairments related to sickle cell anemia compensate for his

failure to meet the IQ requirement, not that either his IQ score

or his intellectual functioning was effectively lower than the

recorded 71 because of other impairments. Kennedy argues

the overall functional impact of his impairments, but he has

not demonstrated that he medically equals the IQ criterion of

Listing 12.05C. His arguments would be relevant at the

fourth and fifth steps of the disability evaluation, but not at

the third step, where equaling a listing serves as a

presumption of disability and automatically ends the inquiry.

KENNEDY V. COLVIN 11

Kennedy, however, has not challenged the ALJ’s fourth and

fifth step findings as issues on appeal.

III.

Kennedy contends that his interpretation of equivalence

is consonant with the Social Security Administration’s own

guidelines, and that the Commissioner’s interpretation is not.

The Social Security Administration’s Program Operations

Manual System (POMS) states:

Listing 12.05C is based on a combination of

an IQ score with an additional and significant

mental or physical impairment. The criteria

for this paragraph 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 DI 24515.056 (2010). We have held that “POMS may

be ‘entitled to respect’ under Skidmore v. Swift & Co.,

323 U.S. 134 (1944), to the extent it provides a persuasive

interpretation of an ambiguous regulation, but it ‘does not

impose judicially enforceable duties on either this court or the

ALJ.’” Carillo-Yeras v. Astrue, 671 F.3d 731, 735 (9th Cir.

2011) (citations omitted) (quoting Lockwood v. Comm’r Soc.

Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010)).

12 KENNEDY V. COLVIN

Regardless, POMS favors neither Kennedy’s interpretation

nor the Commissioner’s interpretation. The guideline’s

notion that equivalence may be supported by an IQ score

slightly higher than 70 and “other physical or mental

disorders that impose additional and significant work-related

limitation of function” is ambiguous as to whether a claimant

must show equivalence to the individual IQ prong itself.

POMS does not explicitly say that a claimant need not

demonstrate medical equivalence with respect to each

component of Listing 12.05C, including the requisite IQ

range. Even if we were to attribute significant weight to

POMS, it would not rule out the interpretation that a claimant

is required to demonstrate that his IQ score – which, under

the guidelines, could be in the 71 to 75 range – is medically

equivalent to the requisite score of 60 to 70. We

acknowledge that POMS is confusing, so we give it little

weight and rely instead on the principles established by

Zebley.

Kennedy also urges that the ALJ inadequately addressed

his evidence of equivalency to Listing 12.05C. “[I]n

determining whether a claimant equals a listing under step

three of the Secretary’s disability evaluation process, the ALJ

must explain adequately his evaluation of alternative tests and

the combined effects of the impairments.” Marcia v.

Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). However,

“Marcia simply requires an ALJ to discuss and evaluate the

evidence that supports his or her conclusion; it does not

specify that the ALJ must do so under the heading

‘Findings.’” Lewis, 236 F.3d at 513. Moreover, “[a]n ALJ is

not required to discuss the combined effects of a claimant’s

impairments or compare them to any listing in an equivalency

determination, unless the claimant presents evidence in an

effort to establish equivalence.” Burch v. Barnhart, 400 F.3d

KENNEDY V. COLVIN 13

676, 683 (9th Cir. 2005). Here, the ALJ adequately addressed

the third step of the evaluation, given that Kennedy never

presented evidence or advanced an argument for equivalency

that conformed to Zebley. The ALJ appropriately addressed

the issues that Kennedy raised and determined that Kennedy

did not meet or equal any listing.

CONCLUSION

Following Zebley, we hold that Kennedy was required to

demonstrate that he medically equaled each of the individual

criteria under Listing 12.05C and failed to do so.

AFFIRMED.