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Kennedy v. Colvin

United States Court of Appeals, Ninth Circuit

December 31, 2013

Richard T. KENNEDY, Plaintiff-Appellant,
Carolyn W. COLVIN, Commissioner of Social Security, Defendant-Appellee.

Argued and Submitted Nov. 8, 2013.

Page 1173

Young Cho and Lawrence D. Rohlfing (argued), Law Offices of Lawrence D. Rohlfing, Santa Fe Springs, CA, for Plaintiff-Appellant.

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, CA, for Defendant-Appellee.

Appeal from the United States District Court for the Central District of California, Ralph Zarefsky, Magistrate Judge, Presiding. D.C. No. 2:11-cv-03 809-RZ.

Before: RAYMOND C. FISHER and RICHARD R. CLIFTON, Circuit Judges, and JAMES K. SINGLETON, District Judge.[*]

Page 1174


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 similar listed impairment." Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), superseded by statute on other grounds as stated in Colon v. Apfel, 133 F.Supp.2d 330, 338-39 (S.D.N.Y.2001).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.


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 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, ...

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