ALJ Duty To Obtain Complete IQ Testing In Intellectual Disability Case

Garcia v. Commissioner of Social Security, September 23, 2014, Ninth Circuit, Case No. 12-15686, 14 C.D.O.S. 11169

I began reading this case out of my interest in cases involving mental capacity, functioning and disability issues. As I read this case I was struck by how disappointed I was that the issue had to proceed all the way to the Ninth Circuit for determination, and that the Social Security Administration would actually pursue the issue that far and force the disability applicant to incur that cost and loss of time. It is of course more difficult for a disability applicant to pursue a case such as this for benefits, whereas the Social Security Administration on the other hand has essentially unlimited legal resources.

Briefly, Garcia appealed from the District Court’s order affirming the Commissioner of Social Security’s denial of benefits to Garcia on the basis that she was not intellectually disabled. As a minor, Garcia received Social Security benefits because of her intellectual disability. After she reached the age of 18, the Social Security Administration concluded that she no longer qualified as disabled and was therefore not entitled to further benefits. Garcia sought review by an ALJ who determined that Garcia was not intellectually disabled. The Social Security Administration Appeals Council denied Garcia’s appeal, and the District Court then subsequently affirmed the Social Security Commissioner’s denial of benefits. The Ninth Circuit reversed.

There was fairly substantial evidence presented to the ALJ. The ALJ determined that Garcia had severe impairment of borderline intellectual functioning, but that the impairment was not so severe that it met the requirements for intellectual disability. The problem was that it was legal error for the ALJ to not ensure that the record included a complete set of IQ test results. The Ninth Circuit held that the ALJ is not a mere umpire in such a proceeding, but that it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore all of the relevant facts. The ALJ must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.

More specifically, in Garcia’s circumstance the ALJ considered the reports of three experts, two psychologists and one physician. Psychologist McDonald evaluated Garcia at the request of the California Department of Social Services. McDonald administered multiple tests, one of which was the Wechsler Adult Intelligence Scale, III Edition (“WAIS-III”). However, McDonald administered only the performance portion of the WAIS-III due to the constraints of time and the slowness with which Garcia completed the test. The Ninth Circuit noted that this was not the first time that McDonald had given that reason for failing to administer a complete IQ test when evaluating a patient for intellectual disability. The Ninth Circuit further held that the excuse was troublesome and that 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 that the administrator of the test should plan accordingly. The court further held that the ALJ always has a special duty to fully and fairly develop the record and to assure that the claimant’s interests are considered. In reversing, the Ninth Circuit held that the entire WAIS-III test should have been administered and that the ALJ’s failure to develop the record to include a complete set of IQ scores was legal error.

It strikes me as almost unbelievable, and certainly disappointing and perhaps even shocking, that the disability applicant had to pursue this case all the way up to the Ninth Circuit to obtain a result that was fair and that should have been automatically provided at the initial stage when McDonald was administering the IQ examination. And yet, one of the three judges from the Ninth Circuit submitted a dissenting opinion, arguing that deference should be given to the Social Security Administration’s denial of benefits determination. That should tell you how speculative and precarious it can be to evaluate the likelihood on recovering or receiving a favorable determination in court.

Dave Tate, Esq. (San Francisco / California)