Frederick Del Sorter v. Michael Astrue

FILED
NOT FOR PUBLICATION JUL 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FREDERICK DEL SORTER, No. 09-16626
Plaintiff - Appellant, D.C. No. 2:08-cv-00647-CMK
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Craig Kellison, Magistrate Judge, Presiding
Submitted July 15, 2010 **
San Francisco, California
Before: W. FLETCHER and M. SMITH, Circuit Judges, and TODD, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
Plaintiff Frederick del Sorter appeals the Commissioner of Social Security’s
denial of his application for Social Security Disability Benefits. We have
jurisdiction under 28 U.S.C. § 1291. We reverse and remand in part, and affirm in
part. As the facts and procedural history are familiar to the parties, we recite them
here only as necessary to explain our decision.
1. Listed Impairment 12.05(C)
Sorter argues that the Administrative Law Judge (ALJ) failed to apply the
proper criteria to determine if he is presumptively disabled under 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.05(C). We agree. To qualify as presumptively
disabled under § 12.05, the claimant must “satisf[y] the diagnostic description in
the introductory paragraph [§ 12.05] and any one of the four sets of criteria
[outlined in paragraphs A, B, C, or D].” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.00(A) (noting that § 12.05 is an exception to the general rule of applying the
“paragraph B criteria” to claims of mental disorder under § 12.00). On the
question of whether Sorter is disabled under § 12.05(C), the ALJ erroneously
evaluated Sorter’s claim considering the “paragraph B criteria” rather than
considering the introductory paragraph of § 12.05 and the particular criteria in
paragraph C under that section (whether Sorter registers “[a] valid verbal,
performance, or full scale IQ of 60 through 70 and [has] a physical or other mental
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impairment imposing an additional and significant work-related limitation of
function,” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C)).
We cannot say that this error was harmless. Sorter presented evidence that
(1) medical testing proves his verbal IQ is 67 and his full scale IQ is 70; (2) he was
in special education classes throughout his school years, showing that his low
intellectual functioning manifested prior to age 22; and (3) his degenerative disc
disease, broad-based disc bulge with probable annular tear, and probable learning
disorder, all establish additional work-related limitations. This evidence is
arguably sufficient to satisfy § 12.05(C). See Fanning v. Bowen, 827 F.2d 631,
633 (9th Cir. 1987). On the other hand, given (1) Dr. Nakagawa’s assessment of
Sorter’s borderline intellectual functioning and otherwise mild difficulties; (2)
Sorter’s work history post-age 22; (3) the vagueness of Sorters’s evidence about
his history in special education classes; and (4) the objective medical evidence that
Sorter’s back injury only imposes moderate physical limitations on his activities,
we cannot conclude in the first instance that a finding in his favor is warranted.
We therefore reverse the denial of benefits and remand to the ALJ for
reconsideration of whether Sorter meets § 12.05(C).
2. Dr. Mathews
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Sorter next argues that the ALJ erred by not contacting Sorter’s treating
physician, Dr. Jeffrey Mathews, to obtain additional, clarifying, medical records
that would have assisted the ALJ in determining Sorter’s Residual Functional
Capacity. However, the ALJ did not find any ambiguity in the medical records,
and to the extent the records were incomplete, that was due to Sorter’s own lack of
treatment over the several years prior to his application for benefits. See Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Moreover, to the extent the ALJ
had a duty to supplement the record in this case, she fulfilled that duty by ordering
consulting evaluations.
3. Adverse Credibility
Sorter further argues that the ALJ improperly discredited his subjective
testimony about the extent to which his back injury and borderline mental
functioning impair his ability to work. However, the ALJ gave specific, clear and
convincing reasons, supported by substantial evidence in the record, for finding
Sorter’s testimony about the degree to which he is impaired not entirely credible.
See Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). Combining
the facts that (1) the 2005 medical evaluations consistently showed only moderate
physical and mental limitations; (2) Sorter has used only mild therapies to treat his
pain, like ibuprofen; and (3) Sorter engages in various everyday activities without
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identified restrictions, there is substantial evidence supporting the ALJ’s finding
that Sorter’s pain is not debilitating to the degree he claims.
4. The Medical Vocational Guidelines
Sorter finally argues that the ALJ erred in using the Medical Vocational
Guidelines (the Grids) in lieu of the testimony of a Vocational Expert to determine
if Sorter is capable of performing jobs that exist in substantial numbers in the
national economy. It may be inappropriate for an ALJ to rely on the Grids when a
claimant suffers from significant non-exertional impairments such that the Grids
do not accurately and completely reflect a claimant’s limitations. Tackett v. Apfel,
180 F.3d 1094, 1103–04 (9th Cir. 1999). Here, Sorter’s non-exertional limitations
relate to his illiteracy and borderline intellectual functioning. The ALJ expressly
found that Sorter’s limitations would not affect the utility of the Grids, which
account for illiteracy and emphasize unskilled work that can be performed despite
borderline intellectual functioning like Sorter’s. Because the Grids accurately and
completely accounted for Sorter’s claimed mental limitations, reliance on them
was not inappropriate in this case.
Conclusion
In light of the foregoing, we REVERSE the denial of benefits and
REMAND for reconsideration of whether Sorter qualifies as presumptively
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disabled under § 12.05(C). We AFFIRM the ALJ’s decision not to contact Dr.
Mathews, the ALJ’s adverse credibility finding, and the ALJ’s use of the Grids.
REVERSED and REMANDED, in part, and AFFIRMED, in part.
The parties shall bear their own costs on appeal.
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