Stephanie Garcia v. Comm. of Social Security

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHANIE GARCIA, No. 12-15686

Plaintiff-Appellant,

D.C. No.

v. 1:10-cv-01997-

JLT

COMMISSIONER OF SOCIAL

SECURITY,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Eastern District of California

Jennifer L. Thurston, Magistrate Judge, Presiding

Argued and Submitted

February 14, 2014—San Francisco, California

Filed September 23, 2014

Before: Alex Kozinski, Chief Judge, and Diarmuid F.

O’Scannlain and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia;

Dissent by Judge O’Scannlain

2 GARCIA V. COMM’S OF SOC. SEC.

SUMMARY*

Social Security

The panel reversed the district court’s order affirming the

Commissioner of Social Security’s denial of benefits on the

basis that the claimant was not intellectually disabled.

The panel held that the administrative law judge (“ALJ”)

had a duty to order further IQ testing, and concluded that the

ALJ’s failure to do so was error that cannot be considered

harmless. The panel remanded to the district court with

instructions to reverse the final decision of the Commissioner

and to order the Commissioner to develop the record through

further IQ testing.

Judge O’Scannlain dissented because he believed that the

majority erroneously presumed that the Commissioner’s

ostensible error prejudiced the claimant. Judge O’Scannlain

also was unconvinced that the ALJ erred by not ordering a

new and complete round of IQ tests.

COUNSEL

Lawrence David Rohlfing (argued), Law Offices of Lawrence

D. Rohlfing, Santa Fe Springs, California, and Cyrus Safa,

Grancell, Stander, Reubens, Thomas and Kinsey, San Diego,

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.

GARCIA V. COMM’S OF SOC. SEC. 3

Donna Wade Anderson (argued), Supervisory Attorney, and

Patrick William Snyder, Special Assistant United States

Attorney, Social Security Administration Office of General

Counsel, San Francisco, California, for Defendant-Appellee.

OPINION

MURGUIA, Circuit Judge:

Stephanie Garcia appeals from the district court’s order

affirming the Commissioner of Social Security’s (the

“Commissioner”) denial of benefits on the basis that she was

not intellectually disabled. Garcia argues that the

administrative law judge (ALJ) who determined that she was

not disabled had a duty to develop the record because that

record did not include a complete set of valid IQ scores. We

agree that the ALJ had a duty to order further IQ testing, and

we further conclude that the ALJ’s failure to do so was an

error that cannot be considered harmless. We therefore

reverse the district court and remand for further proceedings.

I

As a minor, Stephanie Garcia received social security

benefits because of her intellectual disability. After she

reached the age of 18 in 2007, the Social Security

Administration (SSA or the “Administration”) concluded that

she no longer qualified as disabled and was therefore not

entitled to further benefits. Garcia sought review by an ALJ,

before whom she had a hearing on April 8, 2010. At the time

of her hearing, Garcia lived with her mother and two siblings,

as well as her own disabled daughter. Although she had

learned some skills for caring for herself through an

4 GARCIA V. COMM’S OF SOC. SEC.

independent living program, Garcia was dependent on her

mother for her own care and for the care of her child. After

taking special education classes, Garcia earned a high school

diploma, but she was unable to read and did not know the

alphabet.

Garcia worked part-time at a pizza shop for several

months in 2008. She testified to having had difficulty with

making pizzas, taking orders, and cashiering; as a result, she

required constant supervision. She quit because she found the

work “too hard.” Garcia was then placed in a clerical job by

the California Department of Rehabilitation; her duties

included photocopying, alphabetizing files, and removing

staples from documents. She worked four or five hours per

day, five days per week. She testified at her hearing that she

had difficulty understanding how to perform the tasks

assigned to her and had to rely on a coworker for help. Garcia

also quit this job after two months because “[i]t was too

hard.” Vicky Medina, Garcia’s counselor at the Central

Valley Regional Center, testified that, based on her

observations, Garcia would be unable to “do any job eight

hours a day, five days a week as it would be performed in the

national economy without extra supervision.” Medina

explained that Garcia has difficulty remembering how to

perform tasks, and that she needs to be re-taught “on a

constant basis.”

Apart from her intellectual disability, Garcia has suffered

from depression stemming from having to care for her young

daughter, who has Down Syndrome, asthma, and heart and

thyroid problems. Garcia has been treated for her depression,

and her psychiatric condition has improved.

GARCIA V. COMM’S OF SOC. SEC. 5

In evaluating Garcia’s disability claim, the ALJ

considered the reports of three experts: psychologist Mary K.

McDonald, Ph.D., psychologist Allen Middleton, Ph.D., and

physician Evangeline Murillo, M.D.

On February 13, 2008, Dr. McDonald evaluated Garcia at

the request of the California Department of Social Services.

Dr. McDonald administered the Bender Visual Motor Gestalt

Test, II Edition; the Wechsler Memory Scale, III Edition; and

the Wechsler Adult Intelligence Scale, III Edition (“WAIS-

III”). The WAIS-III measures an individual’s “intelligence

quotient,” or “IQ”; IQ is reported as three scores: verbal,

performance (non-verbal), and full scale. See 20 C.F.R.

§ 404, subpt. P, app. 1, listing 12.00 (“Listing 12.00”) (D)(6).

Garcia’s scores on the Motor Gestalt Test were average to

low average, and her Memory Scale scores indicated that her

“[v]erbal memory is impaired and visual memory is within

the low average range.”

Dr. McDonald administered only the performance portion

of the WAIS-III “[d]ue to the constraints of time and the

slowness with which [Garcia] worked.”1 Consequently, Dr.

1

This is not that first time that Dr. McDonald has given this reason for

failing to administer a complete IQ test when evaluating a patient for

intellectual disability. See Andrade v. Comm’r of Soc. Sec., No.

1:09–cv–1926 GSA, 2011 WL 864700 (E.D. Cal. Mar. 10, 2011), aff’d,

474 F. App’x 642 (9th Cir. 2012) (“Dr. McDonald’s report indicates that

only the Performance IQ portion of the Wechsler Adult Intelligence Scale

was administered ‘due to the constraints of time.’”). This excuse is

troublesome, and the district court should not have accepted it in the

absence of some more compelling reason. The SSA’s regulations indicate

that potentially disabled individuals may take more time than others to

complete an IQ test administration, and the administrator of the test should

plan accordingly. See 20 C.F.R. § 416.919n(a).

6 GARCIA V. COMM’S OF SOC. SEC.

McDonald did not report a verbal or full-scale score.

Garcia’s performance IQ score was 77, which is in the

“borderline range” for disability. McDonald concluded that

Garcia was “capable of employment.”

After reviewing Garcia’s medical records, including the

incomplete IQ test results, Dr. Middleton completed a Mental

Residual Functional Capacity Assessment,2 Psychiatric

Review Technique,3 and Case Analysis.4 He determined that

Garcia was “moderately limited” in her “ability to

[understand, remember, and carry out] detailed instructions.”

He concluded that Garcia was “able to understand and

remember [work] locations [and] procedures of a simple,

routine nature involving 1–2 step job tasks [and]

instructions.”

2

Residual Functional Capacity (RFC) is the work that an individual is

capable of performing in spite of her limitations. 20 C.F.R.

§ 416.945(a)(1). The Mental RFC Assessment form used by Dr.

Middleton, Form SSA-4734-SUP, requires a reviewing expert to evaluate

the degree of the subject’s limitations in various aspects of

(1) “understanding and memory,” (2) “sustained concentration and

persistence,” (3) “social interaction,” and (4) “adaption,” such as in

responding to workplace hazards or navigating public transportation.

Based on the evaluation of the subject’s limitations in each category, the

reviewing expert then makes a general assessment of the subject’s

“functional capacity.”

3

The Psychiatric Review Technique form used by Dr. Middleton, Form

SSA-2506-BK, requires the reviewing expert to (1) summarize relevant

documentation, such as IQ test results, (2) rate the subject’s “functional

limitations,” and (3) provide additional notes in narrative form.

4

Dr. Middleton used Form SSA-416, on which he listed “significant

objective findings,” such as Garcia’s IQ test scores, her progress in school,

and her depression.

GARCIA V. COMM’S OF SOC. SEC. 7

Dr. Murillo also reviewed Garcia’s medical records,

including the incomplete IQ results, and completed a Mental

Residual Functioning Capacity Assessment and Case

Analysis.5 Like Dr. Middleton, Dr. Murillo concluded that

Garcia was “moderately limited” in her “ability to

[understand, remember, and carry out] detailed instructions.”

She determined that Garcia could “understand and remember

work locations and procedures of a simple, routine nature

involving 1–2 step job tasks and instructions” and “maintain

concentration and attention for above in 2 hour increments”

during “8 hr/40 hr work schedules.”

At the hearing, the ALJ also heard testimony from

vocational expert Thomas Dachelet. Dachelet testified that

the ability to read and write at a basic level is a requirement

for even those jobs classified by the Dictionary of

Occupational Titles (DOT) as needing the lowest “general

educational development.” However, he also acknowledged

that Garcia had worked at “light unskilled” jobs at which “she

didn’t read or write.” Dachelet testified that in California

“there were 1,020,830 persons employed at the light unskilled

level.” He identified three light unskilled jobs Garcia could

perform: (1) a bagger, of which 44,304 were employed in

California, (2) a garment sorter, of which 21,179 were

5

Dr. Murillo completed the same forms as Dr. Middleton: Mental RFC

Assessment Form SSA-4734-SUP and Case Analysis Form SSA-416.

8 GARCIA V. COMM’S OF SOC. SEC.

employed in California, and (3) a grader,6 of which 20,188

were employed in California.

In a May 18, 2010, decision, the ALJ concluded that

Garcia was not disabled as of February 1, 2008, consistent

with the SSA’s original determination. The ALJ determined

that Garcia had the severe impairment of borderline

intellectual functioning but that the impairment was not so

severe that it met the requirements for intellectual disability;

see 20 C.F.R. § 404, subpt. P, app. 1, listing 12.05 (“Listing

12.05”).

Listing 12.05 lays out four ways in which an individual

may qualify as intellectually disabled without requiring any

further inquiry into her ability to work: (1) “[m]ental

incapacity . . . such that the use of standardized measures of

intellectual functioning is precluded”; (2) “[a] valid verbal,

performance, or full scale IQ of 59 or less”; (3) “[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”; and

(4) “[a] valid verbal, performance, or full scale IQ of 60

through 70, resulting in at least two [milder impairments].”

Id. Each of these alternatives depends on a subject’s IQ test

performance, unless she is unable to undergo testing.

6

Dachelet refers to the DOT listing for a “fruit-grader operator.” One

employed in this position “[t]ends machine that grades fruit according to

size: Changes chains and other driving gear according to type of fruit.

Directs workers engaged in loading of elevator belt and removal of graded

fruit. Cleans and lubricates chains, bearings, and machine gears, using

rags and grease gun. Repairs, replaces, and adjusts malfunctioning parts

of machine.” DOT 529.665-010, 1991 WL 674628.

GARCIA V. COMM’S OF SOC. SEC. 9

Based on Garcia’s performance IQ score of 77, the ALJ

concluded that Garcia could not meet Listing 12.05. The ALJ

further concluded that Garcia had the RFC “to perform a full

range of work at all exertional levels but with the following

nonexertional limitations: [Garcia] can perform simple

repetitive tasks where the jobs can be learned mostly by

demonstration, but she cannot perform reading and/or writing

as a job task.” Based primarily on Dachelet’s testimony, the

ALJ concluded that Garcia was “capable of making a

successful adjustment to other work that exists in significant

numbers in the national economy,” including the jobs of

bagger, garment sorter, and grader. For this reason, the ALJ

concluded that Garcia was “not disabled.”

Garcia appealed the ALJ’s decision to the Social Security

Administration Appeals Council, but her appeal was denied,

making the ALJ’s decision the final decision of the

Commissioner. Garcia then sought judicial review of the

Commissioner’s decision in the district court, arguing in part

that the ALJ erred when she failed to develop the record by

ordering a new IQ test administration to obtain a complete set

of test scores. The district court affirmed the final decision of

the Commissioner.

II

We review de novo a district court’s judgment affirming

the denial of social security benefits. Bray v. Comm’r of Soc.

Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). “We may

set aside a denial of benefits only if it is not supported by

substantial evidence or is based on legal error.” Robbins,

466 F.3d at 882.

10 GARCIA V. COMM’S OF SOC. SEC.

It was legal error for the ALJ not to ensure that the record

included a complete set of IQ test results that both the ALJ

and the reviewing experts could consider. While it is not

certain from the record before us that Garcia would have been

determined to be disabled if the record had been properly

developed, it is also not “clear from the record that ‘the ALJ’s

error was inconsequential to the ultimate nondisability

determination.’” Tommasetti v. Astrue, 533 F.3d 1035, 1038

(9th Cir. 2008) (quoting Robbins v. Soc. Sec. Admin.,

466 F.3d 880, 885 (9th Cir. 2006)). Therefore we reverse the

district court and remand with instructions to reverse the final

decision of the Commissioner and to order the Commissioner

to develop the record through further IQ testing.

III

To be eligible for disability benefits, an individual must

be unable “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period

of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

The evaluation of disability in adults is governed by a

five-step process, which the ALJ followed in assessing

Garcia. 20 C.F.R. § 416.920. The ALJ skipped the first and

fourth steps, as they were not applicable to Garcia’s

situation.7 At the second step, the ALJ determines whether a

7

At the first step, the ALJ would have considered Garcia’s present work

activity; however, this step does not apply to individuals whose disability

determinations are being reevaluated because they turned 18. See 20

C.F.R. § 416.987(b). At the fourth step, the ALJ would have considered

Garcia’s past relevant work, id. § 920(a)(iv); however, the ALJ skipped

GARCIA V. COMM’S OF SOC. SEC. 11

claimant has an impairment or combination of impairments

that is medically severe; if not, the claimant is not disabled.

Id. §§ 416.920(a)(4)(ii), 416.920(c). The ALJ concluded that

Garcia had the severe impairment of “borderline intellectual

functioning,” and so proceeded to the third step.

At the third step, the ALJ again considers the severity of

the impairment or combination of impairments by comparing

it to the listings in 20 C.F.R. § 404, subpart P, appendix 1. Id.

§§ 416.920(a)(4)(iii), 416.920(d). If the impairment or

combination of impairments is at least as severe as the

relevant listing, and has lasted at least twelve months, then

the claimant is deemed disabled, and the inquiry ends;

otherwise, the ALJ proceeds to the next step. Id. The ALJ

concluded that Garcia did not meet Listing 12.05 and so

proceeded to step five. At the fifth step, the ALJ considers

the claimant’s RFC – that is, her ability to work in spite of her

limitations – along with her age, education, and work

experience, to determine whether she can make an adjustment

to a new kind of work. Id. § 416.920(a)(4)(v). The ALJ

concluded that Garcia could perform jobs requiring the ability

to undertake simple, repetitive tasks, and so found that she

was not disabled.

IV

Garcia argues that the ALJ erred by failing to order

additional IQ testing and instead relying on the results of the

partial examination performed by Dr. McDonald. We agree.

“The ALJ always has a ‘special duty to fully and fairly

develop the record and to assure that the claimant’s interests

this step because she concluded that Garcia did not have any past relevant

work.

12 GARCIA V. COMM’S OF SOC. SEC.

are considered.’” Celaya v. Halter, 332 F.3d 1177, 1183 (9th

Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th

Cir. 1983)).

The ALJ is not a mere umpire at such a

proceeding . . . : it is incumbent upon the ALJ

to scrupulously and conscientiously probe

into, inquire of, and explore for all the

relevant facts. He must be especially diligent

in ensuring that favorable as well as

unfavorable facts and circumstances are

elicited.

Id. (quoting Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir.

1992)).

In a case, such as this one, that turns on whether a

claimant has an intellectual disability and in which IQ scores

are relied upon for the purpose of assessing that disability,

there is no question that a “fully and fairly develop[ed]”

record, id., will include a complete set of IQ scores that report

verbal, non-verbal, and full-scale abilities. There are two

principal reasons for our conclusion.

First, IQ testing plays a particularly important role in

assessing the existence of intellectual disability. Listing

12.00 generally lays out the necessary procedures for

evaluating mental disorders, including intellectual disability,

and for documenting relevant objective findings. In that

listing the SSA has recognized that “[s]tandardized

intelligence test results are essential to the adjudication of all

cases of intellectual disability,” except where a claimant is

unable to complete such testing. Listing 12.00(d)(6)(b). At

the third step of the SSA’s five-step process, when a

GARCIA V. COMM’S OF SOC. SEC. 13

claimant’s impairment is compared to the criteria in Listing

12.05, three of the four criteria for intellectual disability rely

in whole or in part on IQ test scores. (The fourth criterion

applies when the claimant’s incapacity precludes IQ testing.)

Because meeting the relevant listing conclusively determines

that a claimant is indeed disabled, 20 C.F.R.

§ 416.920(a)(4)(iii), the claimant’s IQ score can be the

deciding factor in a determination of intellectual disability.

Further, as was the case with Garcia, IQ test results can

play a role in the development of other evidence in the record.

For example, Dr. Middleton and Dr. Murillo both reviewed

Garcia’s IQ results before making their determinations about

her ability to work. Thus, as a practical matter, the

importance of IQ scores in this case did not end with step

three. The partial test results also affected the ALJ’s

conclusions about Garcia’s ability to work, even if less

directly.

The second reason for our conclusion is that the

regulations promulgated by the SSA demonstrate that the

Administration, based on its considerable expertise, has

determined that it is essential for complete – rather than

partial – sets of IQ scores to be used in evaluating intellectual

disability. As a general principle, all reports of test results

“must conform to accepted professional standards and

practices in the medical field for a complete and competent

examination,” 20 C.F.R. § 416.919n(b), and an examination

is not complete unless it includes “all the elements of a

standard examination in the applicable medical specialty,” id.

§ 416.919n(c).

The regulations specifically identify the “Wechsler

series” of IQ tests (of which WAIS-III is a part) as

14 GARCIA V. COMM’S OF SOC. SEC.

“customarily” including “verbal, performance, and full scale

IQs.” Listing 12.00(D)(6)(c). This characteristic of the

Wechsler exam makes it particularly well suited to the

assessment of intellectual disability, because “[g]enerally, it

is preferable to use IQ measures that are wide in scope and

include items that test both verbal and performance abilities.”

Listing 12.00(D)(6)(d).

The Commissioner argues that the regulations themselves

suggest it is acceptable for an ALJ to rely on partial test

results in a situation, such as this one, in which only part of

an IQ test was administered. The Commissioner points

specifically to a passage in Listing 12.00 providing that “[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 [Listing] 12.05.” Id. at

12.00(D)(6)(c).8

However, our reading of this same passage leads us to

conclude the opposite: Listing 12.00 strongly disfavors

reliance on partial test results. The plain text of the

regulation clearly suggests that IQ tests like those in the

Wechsler series should be administered and reported in full,

because it assumes that the ALJ will have multiple scores –

“verbal, performance, and full scale” – from which to “use

the lowest.” We also note that the regulations’ insistence that

the ALJ look at all three scores in order to identify the lowest

among them seems intended to benefit the disability claimant,

for whom each test score is an opportunity to demonstrate

that she meets one of the IQ-related criteria specified in

Listing 12.05 – as well as an opportunity to demonstrate the

8

The district court came to the same conclusion.

GARCIA V. COMM’S OF SOC. SEC. 15

extent of her impairment to other experts reviewing her IQ as

part of their own evaluations of her limitations.

Because the regulations clearly assert the importance of

a complete IQ test administration, the ALJ had a duty to

develop the record so that it included a complete set of IQ test

results. Her failure to do so was legal error.9

V

Our conclusion that the ALJ committed legal error is not

the end of our inquiry. We will not reverse an ALJ’s decision

on the basis of a harmless error, “which exists when it is clear

from the record that ‘the ALJ’s error was inconsequential to

the ultimate nondisability determination.’” Tommasetti,

533 F.3d at 1038 (quoting Robbins, 466 F.3d at 885). While

the record here may not definitively demonstrate that Garcia

would have been adjudicated disabled if the ALJ had ordered

that a complete set of IQ tests be administered, it is certainly

not clear from the record that Garcia was not harmed by the

ALJ’s error.10

9

We recognize that our holding here is contrary to Andrade v.

Commissioner of Social Security, 474 F. App’x 642 (9th Cir. 2012). We

are not bound by our earlier decision. See 9th Cir. R. 36-3(a).

10

The dissent suggests that the harmlessness standard recognized in

Tommasetti does not apply to cases in which the legal error at issue is a

failure of the duty to develop the record. Citing McLeod v. Astrue,

640 F.3d 881 (9th Cir. 2010), the dissent argues that in such cases we

should turn our stringent harmlessness standard on its head and presume

any error is harmless until the claimant or record demonstrates otherwise.

See Dissent at 20, 25–26. McLeod provides no basis for us to create such

a peculiar carve-out from our well-established rule. We have consistently

treated an ALJ’s failure to adequately develop the record as reversible

legal error. See Celaya, 332 F.3d at 1183. We have never suggested that

16 GARCIA V. COMM’S OF SOC. SEC.

Again, we recognize that the importance of IQ test results

in adjudicating intellectual disability is not limited to the

claimant’s ability to meet the listing at step three of the five-

step process. Both Dr. Middleton and Dr. Murillo considered

Garcia’s incomplete IQ test results in assessing her ability to

support herself through gainful employment, and the ALJ

relied on these experts’ findings in assessing Garcia’s RFC

and ultimately in determining that she was not disabled. The

Commissioner points out that neither Dr. Middleton nor Dr.

failure to develop is somehow lesser error, or should be treated differently

to other types of legal error. Indeed, often the same error can be

characterized as either failure-to-develop or “normal” legal error

depending on how it’s described. Adopting a separate—and

inverted—harmlessness standard for failure-to-develop cases would not

only create confusion in our case law, but also hinge a great deal on a

nebulous, and often unimportant, distinction.

McLeod concerned a disability claim by a veteran who argued on

appeal that the ALJ had failed adequately to develop the record. We

observed that there may be situations in which “further administrative

review is needed to determine whether there was prejudice from the error

[of not developing the record].” 640 F.3d at 888. However, contrary to

the dissent’s assertion, we explicitly recognized that “it is quite clear that

no presumptions operate, and we must exercise judgment in light of the

circumstances of the case.” Id. We remanded to the ALJ for a

harmlessness determination, even though it was not clear from the record

that the potentially omitted evidence—a VA disability rating—even

existed. McLeod is limited to situations where the record is insufficient

for the court to make its own prejudice determination, and remand is

required for the ALJ to determine the harmfulness of the omission in the

first instance. It makes good sense that, in such a situation, “mere

probability” that hypothetical new evidence—like the potential disability

certificate—may be influential is insufficient to support a remand.

Because, here, we know precisely which evidence was omitted from the

record and have no doubts about its significance in reaching an intellectual

disability determination, we see no reason to depart from the harmlessness

standard articulated in Tommasetti.

GARCIA V. COMM’S OF SOC. SEC. 17

Murillo “expressed any concerns about the adequacy of Dr.

McDonald’s psychological testing,” but that does not

necessarily mean that neither would have reached a different

conclusion or offered other findings beneficial to Garcia

based on a complete set of scores. Such an outcome seems

particularly plausible where, as here, Garcia’s testing history

as a juvenile strongly suggests that her verbal and full-range

IQ scores would be considerably lower than the performance

score of 77 obtained by Dr. McDonald. In a December 2004

test administration, Garcia was assessed with a verbal score

of 61, a performance score of 74, and a full-scale score of 66.

In June 2005, she received a full-scale score of 44 and a

verbal score of 53. Further, the testimony of Garcia’s

counselor Vicky Medina also suggests that verbal functioning

was a particular weakness for Garcia.

In this case, there is a genuine probability that, had a

complete set of valid IQ test scores been included in the

record, the opinions of the reviewing experts might have been

different, or Garcia might have had an additional factual basis

for challenging their opinions. This is especially true when,

just three years earlier, Garcia’s full-scale test score was

dramatically below the threshold for establishing disability

even on the basis of just the score by itself. See Listing

12.05(B) (providing that intellectual disability may be

established by “[a] valid verbal, performance, or full-scale IQ

of 59 or less”). The fact that IQ test results may be

considered by multiple reviewing experts, as well as by the

ALJ, makes it particularly difficult to conclude that any error

affecting the quality of those results is “inconsequential to

[an] ultimate nondisability determination,” let alone to

conclude that such harmlessness is “clear from the record.”

Tommasetti, 533 F.3d at 1038.

18 GARCIA V. COMM’S OF SOC. SEC.

Perhaps even more significantly, Garcia may have been

able to meet Listing 12.05(B),11 under which she would have

been adjudicated disabled if she had scored below 60 on

either the verbal, performance, or full-scale portion of an IQ

test. Given that Garcia had previously received a childhood

Wechsler full-scale score of 44 and a verbal score of 55, and

that she tended to score lower on the verbal component than

on the performance component, it appears likely that Garcia

could have met Listing 12.05(B) at step three of the

evaluation process. Based on that evidence alone, it cannot

be “clear from the record” that failure to obtain those two

tests was “inconsequential.” Tommasetti, 533 F.3d at 1038.

VI

The ALJ’s failure to develop the record to include a

complete set of IQ scores was legal error. Because we cannot

conclude that the error was harmless, we REVERSE the

judgment of the district court and REMAND with

instructions to remand to the Commissioner for further

proceedings.

11

The dissent argues we should ignore Listing 12.05(B) when reviewing

for harmless error because Garcia “never claimed on appeal that she

would have qualified under Listing 12.05 B.” Dissent at 25 (emphasis in

original). Garcia’s opening brief, however, clearly raised the issue. Garcia

argued that “[b]ased on the high correlation between the tests, the

expected verbal IQ score supports the contention that the complete IQ test

would result in IQ scores sufficient to meet or equal the Listing . . .

12.00.” Listing 12.00 describes the evaluation process to determine

whether an applicant’s impairment is a “mental disorder.” It expressly

states: “If your impairment satisfies the diagnostic description in the

introductory paragraph [of Listing 12.05] and any one of the four sets of

criteria, we will find that your impairment meets the listing.” Listing

12.00 (emphasis added).

GARCIA V. COMM’S OF SOC. SEC. 19

O’SCANNLAIN, Circuit Judge, dissenting:

The panel majority, eager to reprimand the Commissioner

of Social Security for what it deems to be inexcusably sloppy

practices, disregards—I suggest, respectfully—the deference

we owe under law to the agency’s determinations. Rather

than observing the standard for harmless error that our

precedents have previously prescribed, the majority has

erroneously presumed that the Commissioner’s ostensible

error has prejudiced Stephanie Garcia, the claimant in this

case. I respectfully dissent from this regrettable exaggeration

of our Court’s properly limited role in the adjudication of

Social Security disability benefits claims.

I

Congress has carefully prescribed a minimal role for the

Federal courts in adjudicating claims of disability under the

Social Security Act. See 42 U.S.C. § 405(g). Accordingly,

we have only limited authority to nullify the decisions of the

agency and its administrative law judges with which we

disagree. As the majority opinion correctly notes, we may

not disturb an ALJ’s denial of benefits unless “it is not

supported by substantial evidence or is based on legal error.”

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.

2006). Legal error alone, furthermore, is not sufficient to

warrant our interference: for example, we generally must stay

our hand if it is “clear from the record” that any ostensible

error “was inconsequential to the ultimate nondisability

determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038

(9th Cir. 2008) (internal quotation marks omitted).

Indeed, one such error that we have identified in past

cases has been an ALJ’s failure “fully and fairly [to] develop

20 GARCIA V. COMM’S OF SOC. SEC.

the record and to assure that the claimant’s interests are

considered.” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir.

2003). This “special” and “independent” duty of the ALJ

exists in all circumstances, although, when the applicant is

uncounseled, the responsibility to ensure an adequate record

is heightened. See Tonapetyan v. Halter, 242 F.3d 1144, 1150

(9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1288 (9th

Cir. 1996). Despite our solicitude in this regard, we have

nevertheless clearly limned the outer boundaries of such

responsibility. “An ALJ’s duty to develop the record further

is triggered only when there is ambiguous evidence or when

the record is inadequate to allow for proper evaluation of the

evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th

Cir. 2001) (emphasis added).

More recently, we have refined—in the context of the

ALJ’s duty to develop the record—the standard by which we

appraise whether any such error prejudiced the claimant. In

McLeod v. Astrue, the unsuccessful applicant for disability

benefits contended that the “ALJ erred by failing to develop

the record adequately,” specifically by not “request[ing] more

explanation from two of his treating physicians” and by not

obtaining “whatever VA disability rating” he may have had.

640 F.3d 881, 884 (9th Cir. 2011). We determined that the

ALJ had shirked this duty to develop the record, but

nevertheless that this dereliction was not alone sufficient

warrant for reversal. Rather, we explained that “the burden

is on the party attacking the agency’s determination to show

that prejudice resulted from the error.” Id. at 887. But

“where the circumstances of the case show a substantial

likelihood of prejudice,” the reviewing court can remand the

case so the agency may reconsider the claimant’s eligibility

for benefits. Id. at 888. We emphasized, nevertheless, that a

“mere probability” of prejudice “is not enough.” Id. Either

GARCIA V. COMM’S OF SOC. SEC. 21

the claimant must himself shoulder the burden of

demonstrating prejudice, or otherwise such prejudice must be

apparent on the face of the record or the “circumstances of

the case.”

II

The majority’s opinion turns this duty-to-develop doctrine

on its head. Even assuming, arguendo, that the ALJ

committed legal error by not ordering Dr. McDonald to

perform another round of IQ tests on Miss Garcia,1 the

1

I remain unconvinced that, at least in the circumstances of this case, the

ALJ erred by not ordering a new, and complete, round of IQ tests. The

majority opinion does not assert that the partial test scores constitute

“ambiguous evidence” or make the “record . . . inadequate” for the

purposes of assessing residual functional capacity. See Mayes, 276 F.3d

at 460.

At most, the majority opinion gleans from the regulations an

expectation of or a preference for “multiple scores” from a Wechsler

series IQ test, maj. op. at 14. Whether such regulatory intimations can

“trigger[]” the ALJ’s duty further to develop the record, 276 F.3d at 459,

does not appear compelled by our precedents. And the majority does not

pause to explain why.

Furthermore, the majority scarcely indicates what countervailing

constraints—if any—may defeat the regulations’ preference for or

expectation of multiple test scores. Dr. McDonald’s purported reasons for

not administering the complete Wechsler series IQ test were “the

constraints of time and the slowness with which [Miss Garcia] worked.”

The majority simply deems this explanation an “excuse,” dismissing it as

“troublesome” and scolding the district court, which in its judgment

“should not have accepted it in the absence of some more compelling

reason.” Maj. op. at 5–6 & n.1.

I strongly resist this lecture to medical practitioners. Not only does

the record lack any clear implication of either excuse-making or duty-

22 GARCIA V. COMM’S OF SOC. SEC.

majority misstates—and misapplies—the proper standard for

assessing any prejudice such error caused.

In the first place, the majority correctly acknowledges that

“[w]e will not reverse an ALJ’s decision on the basis of a

harmless error,” which occurs “when it is clear from the

record that the ALJ’s error was inconsequential to the

ultimate nondisability determination,” maj. op. at 15 (internal

quotation marks omitted). Although the majority does not

expressly state that such rule is the exclusive standard by

which to assess the harm caused by an error, its reasoning

assumes so. For the majority detects prejudice in “a genuine

probability” that a complete set of IQ test scores may have

altered the medical reports or provided another basis for Miss

Garcia to challenge the ALJ’s determination. Id. at 17.

McLeod, however, specifically forecloses this basis for

reversing a denial of benefits: a “mere probability,” no matter

how “genuine,” simply does not suffice. 640 F.3d at 888.

The majority articulates an exclusive standard for harmless

error that presumes prejudice unless such error appear

“inconsequential” on the face of the record. Such may be the

ordinary analysis for determining the prejudice caused by

legal error. In the special context of the ALJ’s duty to

develop the record, however, our Court has already clearly

explained that we cannot find prejudice unless and until

shirking, but also it is not self-evident that the time Dr. McDonald did

devote to administering the tests and interviewing Miss Garcia was

insufficient or otherwise imprudent. We should be reticent to craft, in

footnotes to our opinions, legal rules governing the minutiae of medical

practice—such as how and when to schedule tests and interviews—where

Congress has not legislated and where the agency has not regulated. And

especially not where the record and the parties’ briefings do not present

an adequate basis for determining which sort of constraints are reasonable

and which are merely “excuses.”

GARCIA V. COMM’S OF SOC. SEC. 23

demonstrated by the claimant or the record and circumstances

of the case.

Furthermore, the majority offers no basis, either in law or

in fact, for simply asserting that the absence of a full set of

IQ test scores would have had any likely effect on the ALJ’s

disability determination. The majority first observes that

“[b]oth Dr. Middleton and Dr. Murillo considered Garcia’s

incomplete IQ test results in assessing her ability to support

herself through gainful employment.” Maj. op. at 16.

Indeed, the medical experts considered the test scores—but

they also considered sundry other relevant data, such as her

employment history, educational and recreational activities,

financial independence, grooming, and the cooperation and

comprehension she displayed during her clinical evaluation.

The majority does not indicate any basis from these experts’

reports that the partial test scores figured decisively in their

recommendations. Nor does the majority opinion advert to

any item in the record or the “circumstances of the case” that

suggests the slightest chance—let alone a “genuine

probability”—the ALJ would have concluded differently had

he seen a full set of IQ test scores.

Even Miss Garcia’s own briefing does not attempt such

an argument. In her opening brief, she emphasizes only that,

deprived of a full battery of test scores, she lost the

opportunity to qualify for automatic disability benefits under

Listing 12.05 C or D, see 20 C.F.R. § 404, subpt. P, app. 1.

She does not, however, attempt affirmatively to link the

incomplete IQ tests with the medical reports and the ALJ’s

determination of her residual functional capacity. Only in her

supplemental brief does Miss Garcia clearly assert such a

connection—and, even there, she does not offer any reason

why we may expect the medical experts would have

24 GARCIA V. COMM’S OF SOC. SEC.

substantively revised their reports in light of complete test

results.

The majority assures us, however, that an alternative

finding by the ALJ “seems particularly plausible” based on

Miss Garcia’s “considerably lower” test results as a juvenile.

Maj. op. at 16–17. But this is a non sequitur. The ALJ

determined Miss Garcia not to be disabled in light of her

record as a whole: he did not explain that the partial IQ test

score carried dispositive weight. Nothing in the record to

which either Miss Garcia or the majority point suggests a

necessary connection between marginally lower IQ scores

and a RFC finding that would prevent her from procuring and

performing gainful employment. This “genuine probability”

of a different outcome that the majority identifies,

accordingly, appears little more than an unsubstantiated

hunch.

In addition, Listings 12.05 C and D require not only a

sufficiently low IQ test score, but also additional

impairments, before the applicant may qualify for disability

benefits thereunder. Miss Garcia does not, before this court,

argue that she may have qualified under Listing 12.05 B,

which she would satisfy simply by scoring below 60 on any

of her tests without presenting any other additional

impairments.2 Nevertheless, the majority, pointing to her

substantially lower testing results as a juvenile, predicts that

Miss Garcia may have scored low enough to qualify as

disabled under Listing 12.05 B. For such reason, the majority

finds prejudice in Dr. McDonald’s failure to administer the

2

In her opening brief, Miss Garcia specifically argued that “a valid IQ

score on one of the two missing IQ tests may provide satisfaction of the

Listing at § 12.05(C) or (D).”

GARCIA V. COMM’S OF SOC. SEC. 25

entire battery of IQ tests and in the ALJ’s acceptance of these

partial scores. In effect, this reasoning says—bizarrely—that

Miss Garcia wins an argument she does not make. Since she

never claimed on appeal that she would have qualified under

Listing 12.05 B, the possibility that she could have so

qualified should not be a grounds that she suffered prejudice.

III

The majority’s reasoning, furthermore, threatens to

undermine the highly deferential standard under which we

review the Commissioner’s decisions. When presented with

an appeal from an unsuccessful applicant, we may not

second-guess the Commissioner’s determination or reverse

him simply because we disagree with the result. Our

authority to order relief is more limited: if substantial

evidence exists in the record to support the agency’s fact-

bound conclusions, our analysis must generally come to an

end. Here the majority opinion does not suggest an absence

of substantial evidence to ballast the ALJ’s nondisability

finding; rather, it posits that, despite any such substantial

evidence, the ALJ might have reached an alternative

conclusion if the record had contained a full set of IQ scores.

Such holding opens a potentially fatal breach in the

substantial-evidence framework. Indeed, the majority

determines that the ALJ committed legal error by not

developing the record to include a full set of test scores; and,

indeed, “legal error” is a basis distinct from the lack of

substantial evidence for reversal. Nevertheless the

relationship between these two standards, in the context of the

ALJ’s legal duty to develop the record, should be apparent

enough. Claimants previously required to disprove the

existence of substantial evidence will now plead an

26 GARCIA V. COMM’S OF SOC. SEC.

incomplete record and, citing the majority opinion, will assert

that the outcome of their case “might have been different,”

maj. op. at 17. Seldom will be the occasion where the ALJ

could not have examined more reports or ordered more tests.

In Mayes, we specifically rejected a challenge from a

claimant who contended, in effect, that substantial evidence

did not support the ALJ’s denial because he did not

adequately develop the record. 276 F.3d at 459. The

substantial-evidence standard protects against precisely such

attacks on the administrative process: the courts may not

overturn the agency’s findings, substantiated by sufficient

data, even in the presence of compelling countervailing

evidence. Claimants ought not be able to circumvent this

standard by invoking hypothetical evidence that the ALJ

could have but neglected for one reason or another to

consider. Id. Our procedure, elucidated in McLeod, for

assessing the prejudice caused by an inadequately developed

record reinforces these principles. The ALJ’s duty to develop

“is triggered only” in certain circumstances, Mayes, 276 F.3d

at 459, and, unlike other contexts, we do not presume

prejudice until the claimant or the record demonstrates

otherwise, see McLeod, 640 F.3d at 887–88.

The majority’s doctrinal innovation destabilizes this

framework, substantially lowering the burden for plaintiffs

seeking the intervention of the Federal courts in the

Commissioner’s decision-making processes and portending

to make substantial-evidence review a dead letter. Such

result contravenes the precedents of this Court, the intent of

Congress, and the separation of powers.

IV

For the foregoing reasons, I respectfully dissent.