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Scott v. Astrue: SOCIAL SECURITY - inconsistent record; remand regarding impairments meeting listed

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1796
___________
Viola Scott, On Behalf of *
Absalom Scott, *
*
Plaintiff-Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Michael J. Astrue, Commissioner, *
Social Security Administration, *
*
Defendant-Appellee. *
___________
Submitted: January 17, 2008
Filed: June 23, 2008
___________
Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.
___________
BRIGHT, Circuit Judge.
Appellant, Viola Scott (Scott), on behalf of her minor son, Absalom Scott
(Absalom), applied for Supplemental Social Security Benefits under Title XIX of
the Social Security Act. Scott claimed her son was disabled due to speech, learning,
and behavioral problems. The Social Security Commissioner (Commissioner)
denied Scotts claim and the district court affirmed. Scott now appeals the district
courts order affirming the Commissioners decision and argues that substantial
evidence does not support the Commissioners conclusion that Absaloms
impairments did not meet or medically equal any listed impairment. Scott argues that
1The WISC-III measures general intellectual functioning. The Full Scale IQ
provides a measure of general intelligence. The Verbal IQ provides a measure of
verbal comprehension, including the application of verbal skills and information to
the solution of new problems, ability to process verbal information, and the ability to
think with words. The Performance IQ provides a measure of perceptual organization,
including the ability to think in visual images and to manipulate these images with
fluency and relative speed, to reason without the use of words and to interpret visual
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substantial evidence supports a finding that Absaloms severe impairments met the
listed impairment for mental retardation.
We have jurisdiction pursuant to 28 U.S.C. 1291. Although the record is
extensive, the ALJ has failed to make findings on critical issues. We therefore must
remand for further proceedings.
I. BACKGROUND
On September 23, 2003, Scott filed an application for Supplemental Social
Security Benefits on behalf of Absalom claiming that since January 1, 2002, Absalom
was disabled due to learning, speech, and behavioral problems. After the
Commissioner denied Scotts claim initially and on reconsideration, Scott timely filed
a request for a hearing before an ALJ. On November 10, 2005, the ALJ held a hearing
via video teleconference. Both Scott and Absalom testified at the hearing.
Absalom was born on December 17, 1989 and was fifteen years old on the date
of the hearing. According to the evidence before the ALJ, Absaloms school reported
in 1999 that he had difficulty learning and referred him to school psychologist Rita
Lynne Jones (Jones) for educational testing to determine his level of functioning.
On March 10, 1999, Absalom scored a Verbal IQ of 84, Performance IQ of 75, and
a Full Scale IQ of 78 on the Wechsler Intelligence Scale for Children-IIII (WISCIII).
1 In addition, Absaloms results on the Woodcock Johnson Tests of
material quickly.
2The Woodcock Johnson Tests of Achievement measures achievement in the
following areas: Basic Reading Skills; Reading Comprehension; Basic Math Skills;
Math Reasoning; Basic Writing Skills; and Written Expression.
3The WIAT-II measures academic achievement relative to same age peers in the
areas of word reading, reading comprehension, numerical operations, math reasoning,
spelling, and written expression.
-3-
Achievement-Revised (WJ-R)2 were in the Low Average to Mental Retardation
range. In light of his test results, Jones determined that under Arkansas law,
Absalom qualified as learning disabled in the area of written expression.
On May 10, 2002, Jones re-tested Absalom to determine his then level of
functioning. Absalom completed a WISC-III and a Wechsler Individual Achievement
Test (WIAT-II)3. On the WISC-III, Absalom scored a Verbal IQ of 81,
Performance IQ of 70, and Full Scale IQ of 73. Absaloms scores on the WIAT-II
were in the borderline or below range in all areas. Jones reported that Absalom had
adaptive deficits in the areas of speaking, spelling, reading and writing. Based on
the test results, Jones concluded that Absaloms academic ability [is] limited, is at the
lower end of national norms for [his] age range, and is likely to lead to frequent failure
and frustration in regular class. She recommended Absaloms school place him in
a special education program and administer an Adaptive Behavior Evaluation Scale
to determine his level of adaptive functioning.
Absalom also suffered from psychological problems. In August 2003, due to
disorderly conduct, a court ordered Absalom to attend Consolidated Youth Services
(CYS), a juvenile home. One month later, CYS discharged Absalom because he
exhibited aggressive and threatening behavior. Absalom was subsequently admitted
to BridgeWay Hospital for psychiatric evaluation and diagnosed with among other
things, Major Depressive Disorder with Psychotic features and prescribed Risperdal
-4-
to control his behavior. Before his discharge from BridgeWay Hospital, Absalom
underwent testing to determine, among other things, his level of intellectual
functioning. Absaloms Discharge Summary reported that his overall test scores,
which included his 2002 WISC-III and WIAT-II test results, were consistent with
Borderline Intellectual Functioning with evidence of a Learning Disorder for written
expression.
In December 2003, after Scott filed her disability claim, the Commissioner
referred Absalom to Dr. Suzanne Gibbard, Ph.D. (Dr. Gibbard), a licensed
psychologist and medical consultant for the State of Arkansas, for a mental status and
adaptive function evaluation. Dr. Gibbard concluded that Absalom had two or more
areas of adaptive functioning with significant limitation, but concluded that
Absaloms adaptive functioning was not consistent with a diagnosis of mental
retardation.
On January 23, 2006, in a written decision, the ALJ denied Scotts claim for
disability benefits. The ALJs decision became the final decision of the
Commissioner when the Appeals Council denied Scotts request for review. Scott
then filed an appeal in District Court for the Eastern District of Arkansas. The district
court affirmed the Commissioners disability determination. This appeal followed.
II. DISCUSSION
We review the district courts decision affirming the Commissioners denial of
benefits de novo, and will overturn the decision if the Commissioners conclusions
lack support from substantial evidence in the record as a whole. Snead v. Barnhart,
360 F.3d 834, 836 (8th Cir. 2004). This review is more than a search of the record
for evidence supporting the [Commissioners] findings, Hunt v. Massanari, 250 F.3d
622, 623 (8th Cir. 2001) (internal quotations and citations omitted), and requires a
scrutinizing analysis, not merely a rubber stamp of the [Commissioners] action.
-5-
Cooper v. Sullivan, 919 F.2d 1317, 1320 (8th Cir. 1990). Therefore, we must
consider relevant evidence which a reasonable mind would accept as adequate to
support the Commissioners conclusion, as well as evidence that detracts from the
Commissioners decision. Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998)
(internal citations omitted).
A child under eighteen years is disabled if that individual has a medically
determinable physical or mental impairment, which results in marked and severe
functional limitations, and which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months. 42
U.S.C. 1382c(a)(3)(C)(i). The ALJ employs a three-step sequential process to
determine whether a child is disabled. First, the ALJ determines if the child is
engaged in a substantial gainful activity. 20 C.F.R. 416.924(b). Second, if the child
is not working, the ALJ determines if the child has a medically determinable
impairment(s) that is severe. 416.924(c). And third, if the ALJ finds that the
childs impairment is severe, the ALJ must then determine whether the impairment or
combination of impairments meets or medically equals the severity of a listed
impairment described in 20 C.F.R. Pt. 404, Subpt. P, App. 1. 416.924(d). If the
ALJ finds that the childs impairment does not meet or medically equal the severity
of a listed impairment, the child may still be disabled if the ALJ determines that the
impairment(s) functionally equals the severity of a listed impairment. Id. In making
his disability determination, the ALJ must consider all relevant evidence in the record.
416.924(a) (We consider all relevant evidence in your case record when we make
a determination or decision whether you are disabled.); Reeder v. Apfel, 214 F.3d
984, 988 (8th Cir. 2000) ([T]he ALJ is not free to ignore medical evidence but rather
must consider the whole record.).
In this case, at step one, the ALJ found that Absalom was not engaged in a
substantial gainful activity. At step two, the ALJ determined that Absalom suffered
from severe impairments which included: impulse control disorder, mood
-6-
disorder/depressive disorder with psychotic features, disruptive behavior disorder,
learning disability in written expression and math, and articulation disorder with
borderline intellectual functioning. At step three, however, the ALJ concluded that
Absaloms impairments did not meet, medically equal, or functionally equal the
severity of a listed impairment. On that basis, the ALJ denied Scotts claim for
benefits. On appeal, Scott does not challenge the ALJs conclusion that Absaloms
impairments did not functionally equal a listed impairment. Rather, Scott contends
that substantial evidence in the record supports the conclusion that Absalom met or
medically equaled the listed impairment for mental retardation.
The listed impairment for mental retardation under 20 C.F.R. Pt. 404, Subpt. P.,
App. 1 112.05, provides: Mental Retardation: Characterized by significantly
subaverage general intellectual functioning with deficits in adaptive functioning. To
meet the required level of severity for mental retardation, the claimant must satisfy the
requirements in A, B, C, D, E, or F of the listing. Id. Scott argues that Absalom
satisfied the requirements of D, which 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 limitation of function. 112.05D (listing 112.05D).
Thus, to meet listing 112.05D, the claimant must have: (1) significant subaverage
general intellectual functioning with deficits in adaptive functioning; (2) a valid
verbal, performance, or full scale IQ of 60 through 70; and (3) a physical or other
mental impairment imposing an additional and significant limitation of function. See
Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006) (holding that the requirements
in the introductory paragraph are mandatory). The claimant, however, does not have
to be formally diagnosed with mental retardation to meet the Regulations definition
of mental retardation. Id. at 899.
In determining that Absaloms impairment did not meet or medically equal a
listed impairment, the ALJ never referred to listing 112.05D. Indeed, the ALJ did not
cite or reference any listing. As a general rule, we have held that an ALJs failure to
-7-
adequately explain his factual findings is not a sufficient reason for setting aside an
administrative finding where the record supports the overall determination. Senne
v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999); see also Pepper v. Barnhart, 342 F.3d
853, 855 (8th Cir. 2003); Briggs v. Callahan, 139 F.3d 606, 607 (8th Cir. 1998).
However, we have held that a remand is appropriate where the ALJs factual findings,
considered in light of the record as a whole, are insufficient to permit this Court to
conclude that substantial evidence supports the Commissioners decision. See Chunn
v. Barnhart, 397 F.3d 667, 672 (8th Cir. 2005) (remanding because the ALJs factual
findings were insufficient for meaningful appellate review); Pettit v. Apfel, 218 F.3d
901, 903-04 (8th Cir. 2000) (same).
In Chunn, for example, we reversed the district court and remanded the case for
further proceedings because the ALJs analysis was insufficient to permit adequate
judicial review of the Commissioners decision. 397 F.3d at 672. There, the applicant
claimed that she was disabled due to mental retardation. Id. at 671. In finding that the
applicants impairment did not meet the listing for mental retardation, the ALJ failed
to address the only evidence in the record evaluating the claimants IQevidence
which indicated that the claimant met the listing for mental retardation. Id. at 672.
In addition, the ALJ failed to reference the listing for mental retardation or otherwise
indicate that he considered the listing relevant to the disability claim. Id. at 671. In
light of the ALJs failure to adequately support his findings at step three, we could not
determine whether substantial evidence supported the finding that the claimant did not
meet or medically equal the listing. Id. at 672. Therefore, we remanded the case for
further proceedings. Id.
The same is true here. Because the ALJ failed to support his finding that
Absalom did not meet or medically equal the severity of a listed impairment, and
because the record contains inconsistencies on this issue, we are unable to determine
whether substantial evidence supports the ALJs finding that Absaloms impairments
did not meet or medically equal listing 112.05D. Nothing in the ALJs decision
-8-
indicates that the ALJ considered listing 112.05D relevant to Scotts claim. The
ALJs cursory discussion on this issue only states that in reaching the conclusion that
Absaloms impairments did not meet any listing, the ALJ considered State agency
medical consultants who evaluated this issue at the initial and reconsideration levels
of the administrative review process and reached the same conclusion. The ALJ,
however, does not cite or reference what reports in the record he relied upon.
Moreover, the evidence in the record regarding Absaloms intellectual functioning,
adaptive functioning, and IQ, contains several contradictory conclusions which the
ALJ failed to resolve, let alone address.
Notwithstanding any inadequacies in the ALJs decision, the Commissioner
contends that substantial evidence in the record supports a finding that Absalom did
not meet the listingss intellectual and adaptive functioning requirements. In addition,
the Commissioner argues that Absaloms 2002 IQ results were invalid because on the
date of the hearing they were not sufficiently current.
With respect to Absaloms intellectual functioning, the Commissioner argues
that the October 2003 Discharge Summary from BridgeWay Hospital, which
reported Absaloms overall test scores were consistent with Borderline Intellectual
Functioning, precludes a finding that Absalom had significant subaverage intellectual
functioning. The Commissioners reliance on the 2003 report as substantial
evidence on this issue is ill-placed, however.
The reports assessment of Absaloms intellectual functioning was based
largely on the 2002 WISC-III IQ results that concluded Absaloms Full Scale IQ of
73 placed him in the Borderline or below range of intelligence. We have never held
that a diagnosis of borderline intellectual functioning, notwithstanding other contrary
evidence in the record, will necessitate a finding that the claimant does not have
subaverage intellectual functioning. Indeed, Absaloms 1999 and 2002 education
evaluations support a finding that Absalom had below average intellectual
4As noted above, a formal diagnosis of mental retardation is not required to find
a claimant entitled to disability benefits as the medical standard for mental retardation
differs from the legal standard. Cox, 495 F.3d at 618 n.4; Maresh, 438 F.3d at 899.
We discuss the medical standard for mental retardation only to illustrate an important
inconsistency in Dr. Gibbards report that the ALJ failed to address.
-9-
functioning: Absaloms 1999 evaluation reported achievement levels in the low
average to mental retardation range, his 2002 WIAT-II results were borderline or
below range in all areas, and his 2002 evaluation reported Absaloms academic ability
at the lower end of national norms for [his] age range.
Next, with respect to Absaloms adaptive functioning, the Commissioner argues
that Dr. Gibbards 2003 adaptive functioning evaluation, which concluded that
Absaloms adaptive functioning was not consistent with a diagnosis of mental
retardation, supports a finding that Absalom did not satisfy the listings requisite
deficits in adaptive functioning. The Commissioner, however, ignores Dr. Gibbards
statement that Absalom had significant limitations in two or more areas of adaptive
functioning. We have recognized that limitations in two or more areas of adaptive
behavior is a medical prerequisite for a classification of mental retardation. See Cox
v. Astrue, 495 F.3d 614, 618 (8th Cir. 2007). Dr. Gibbards report therefore contains
an important contradictiona diagnosis at odds with her observationswhich the ALJ
failed to address.4 We have held that such a contradiction in a medical report alone
does not require remand, but only when the record is clear and permits this Court to
resolve the contradiction without further clarification. See id. As discussed, the
record here is far from clear and prevents this Court from resolving, without further
clarification, this significant contradiction.
Finally, the Commissioner argues that Absalom failed to satisfy the listings IQ
requirements because under the Regulations, Absaloms 2002 IQ scores were invalid
because they were not sufficiently current at the time of the 2005 hearing. See 20
C.F.R. Pt. 404, Subpt. P., App. 1 112.00D.10 ([IQ results] must also be sufficiently
-10-
current for accurate assessment. . . . IQ test results obtained between ages 7 and 16
should be considered current for . . . 2 years when the IQ is 40 or above.). Scott
argues that when she filed her claim in 2003, the scores were only a year old and were
therefore current. The ALJ made no findings with respect to the timeliness of the IQ
results and the Regulations do not clarify whether the two-year period is measured
from the date of initial filing or from the date of the hearing.
We believe, however, that in light of the unique non-adversarial nature of
administrative proceedings, see Cox, 495 F.3d at 618 (noting the non-adversarial
nature of administrative proceedings), it would offend principles of fairness to now
conclude that Absaloms IQ scores are invalid because they were not sufficiently
current on the date of the hearing. It is well-settled that the ALJ bears a
responsibility to develop the record fairly and fully, independent of the claimants
burden to press his case. Snead v.Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). If the
ALJ determined that Absaloms IQ results were not current on the date of the hearing,
in exercising his obligation to develop the record, the ALJ should have ordered a new
IQ test. We cannot fault Scott for the ALJs failure to carry out his statutory duty to
develop the record independent of the claimants burden. We therefore reject the
Commissioners argument that the 2002 IQ scores are invalid.
In addition, we note that Absaloms 2002 WISC-III Performance IQ of 70
satisfied the IQ requirements set forth in listing 112.05D. While IQ tests are helpful
in determining whether an applicant has a mental impairment, this Court has cautioned
that IQ scores should be examined to assess consistency with daily activities and the
ALJ may reject IQ scores if they are inconsistent with the rest of the record. Johnson
v. Barnhart, 390 F.3d 1067, 1071 (8th Cir. 2004); Clark v. Apfel, 141 F.3d 1253, 1255
(8th Cir. 1998). Here, the ALJ cited the IQ scores in his recitation of the evidence but
failed to discuss the IQ scores in his finding that Absalom did not meet or medically
equal a listed impairment. The ALJ also made no finding as to whether the IQ results
were consistent with Absaloms daily activities.
-11-
III. CONCLUSION
Due to inconsistencies in the record, which the ALJ failed to address, we are
unable to determine whether substantial evidence supports the ALJs finding that
Absaloms impairment did not meet or medically equal listing 112.05D. See
Senne, 198 F.3d at 1067. Furthermore, our review of the record leads us to
seriously question whether the ALJ satisfied his duty to evaluate the entire record.
Accordingly, we reverse and remand to the district court. On remand the ALJ
should specifically address whether Absaloms impairments met or medically
equaled listing 112.05D.
______________________________
 

 
 
 

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