                                                                           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                            NOT FOR PUBLICATION                             JUL 22 2010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


                                          2
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




                                           3
      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


                                          4
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


                                           5
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.




                                         6
