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.