Karen Ash v. Carolyn W. Colvin , 812 F.3d 686 ( 2016 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 15-1133
    ___________________________
    Karen Ash,
    lllllllllllllllllllll Plaintiff - Appellant,
    v.
    Carolyn W. Colvin, Acting Commissioner of Social Security,
    lllllllllllllllllllll Defendant - Appellee.
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Jonesboro
    ____________
    Submitted: September 22, 2015
    Filed: February 4, 2016
    ____________
    Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.
    ____________
    COLLOTON, Circuit Judge.
    Karen Ash appeals the judgment of the district court1 affirming the denial of her
    application for Social Security disability insurance benefits and supplemental security
    income. We affirm.
    1
    The Honorable Joe J. Volpe, United States Magistrate Judge for the Eastern
    District of Arkansas, sitting by consent of the parties pursuant to 28 U.S.C. § 636(c).
    I.
    Karen Ash applied for disability insurance benefits and supplemental security
    income, claiming a disability onset date of June 26, 2010. Ash asserted that she was
    unable to work due to a back injury, arthritis, depression, headaches, irritable bowel
    syndrome, problems with her hands and heels, and mild mental retardation. Ash had
    been employed at a Family Dollar store for approximately ten years before June 2010.
    On October 15, 2010, Ash completed a Function Report outlining her daily
    activities in support of her claim. She stated that she lived alone and prepared her own
    meals. She did her own cleaning and laundry without help from others but noted that
    these chores sometimes took all day. Ash drove her mother’s car and said that she
    went shopping with her mother for “basic stuff.” Ash asserted that she could pay
    bills, count change, handle a savings account, and use a checkbook. Ash used a
    computer and spent time socializing with her daughter on Facebook but stated that she
    could not sit for a long period of time without back pain. She further reported
    difficulty lifting, bending, kneeling, squatting, and sitting.
    Dr. Dennis Vowell conducted a mental diagnostic evaluation and intellectual
    assessment of Ash in November 2010. Ash reported that she had difficulty with
    reading comprehension but could read and understand the newspaper. Ash graduated
    from high school, although she was placed in resource classes for help with reading
    and math beginning in elementary school. Dr. Vowell administered a Wechsler Adult
    Intelligence Scale, Fourth Edition test (WAIS-IV), and Ash received a full scale IQ
    score of 57, a verbal comprehension index score of 70, a perceptual reasoning index
    score of 63, a working memory index score of 58, and a processing speed score of 62.
    Dr. Vowell observed that Ash was cooperative and appeared to put forth her best
    effort throughout the testing. He ultimately found the IQ test to be “a valid
    assessment of [Ash’s] current intellectual functioning” and noted that her scores were
    “well below the average range in all areas assessed by the WAIS-IV.” Dr. Vowell
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    concluded that “[c]urrent intellectual assessment, education history, and adaptive
    functioning indicate [Ash’s] current level of intellectual functioning falls within the
    mild range of mental retardation.”
    In responding to a question about how Ash’s mental impairments interfered
    with her daily adaptive functioning, however, Dr. Vowell described no interference.
    He noted that Ash was capable of driving unfamiliar routes, shopping independently,
    managing her own finances, and completing basic household chores and other basic
    activities of daily living. Dr. Vowell observed that Ash displayed “mild to moderate
    difficulty responding adequately to basic assessment of attention and concentration
    capacity.” He further reported that Ash was capable of adequate and socially
    appropriate communication, was able to respond to questions without remarkable
    slowing or distraction, had adequate persistence, and was able to perform tasks within
    a basically acceptable time frame.
    Dr. Abesie Kelly, a medical consultant, reviewed Ash’s medical records in
    December 2010 at the request of the Social Security Administration. Dr. Kelly noted
    that Ash’s IQ scores and placement in special education classes were consistent with
    a diagnosis of mental retardation. Yet Dr. Kelly observed that Ash’s ten-year work
    history at Family Dollar was considered skilled employment. Dr. Kelly noted that
    while Ash may have some problems functioning, her “symptoms do not preclude her
    from engaging in simple, repetitive, routine tasks.” Dr. Kelly opined that Ash was
    capable of performing work where interpersonal contact is incidental to work
    performed, where complexity of tasks is learned and performed by rote, where there
    are few variables and little judgment, and where the supervision required is simple,
    direct, and concrete—namely, unskilled work. A second medical consultant affirmed
    Dr. Kelly’s assessment.
    The agency denied Ash’s claims after an initial review and on reconsideration.
    Ash requested a hearing before an administrative law judge (“ALJ”). At the hearing,
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    Ash testified that she formerly worked as a cashier at Family Dollar but left that job
    due to “management stress” and because she was denied leave to visit her daughter.
    Ash stated that she required frequent reminders to complete her tasks and that a new
    manager was less accommodating to her need for reminders than her previous
    supervisor. She testified that she could not calculate in her head the correct change
    to give a customer, but that she could distribute change when the cash register showed
    the proper amount. Ash stated that she required help in keeping a checking account,
    that her parents paid her utility bills, and that she received public assistance to pay her
    rent and buy food. Ash’s father testified that he helped Ash with rent and
    transportation. Ash’s father also said that he had to repeat things to Ash when he
    helped her with her schoolwork as a child.
    A vocational expert testified that Ash’s past work as a retail store cashier was
    classified as semi-skilled. The ALJ asked the vocational expert whether an individual
    with certain characteristics could perform Ash’s past work: a person with Ash’s age
    and education who was capable of light work with incidental interpersonal contact,
    who learned tasks through repetition and demonstration, who required few variables
    and little judgment in the work performed, and who required simple, direct, and
    concrete supervision. The vocational expert testified that such a person would be
    unable to perform Ash’s past work due to the interpersonal contact required and the
    semi-skilled nature of the job. The vocational expert opined, however, that such a
    person could perform work as a housekeeper or a factory work assembler. The ALJ
    asked whether these jobs would remain available if the individual required eight hours
    of absence a month and monthly reminders of job duties, and the vocational expert
    stated that the factory work would be eliminated but that such a person could perform
    work as a housekeeper or a cafeteria attendant.
    The ALJ concluded that Ash was not entitled to a conclusive presumption of
    disability because her impairments did not meet or medically equal one of the listed
    impairments in the social security regulations. The ALJ then found that Ash had the
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    residual functional capacity to perform light work and that jobs suitable for Ash
    existed in significant numbers in the national economy. The Appeals Council denied
    Ash’s request for review. The district court upheld the Commissioner’s decision. Ash
    appeals, arguing that the ALJ’s conclusion is not supported by substantial evidence.
    II.
    We review de novo the district court’s decision affirming the denial of social
    security benefits and will affirm “if the Commissioner’s decision is supported by the
    substantial evidence on the record as a whole.” McNamara v. Astrue, 
    590 F.3d 607
    ,
    610 (8th Cir. 2010) (internal quotation omitted). “Substantial evidence is less than a
    preponderance, but is enough that a reasonable mind would find it adequate to support
    the Commissioner’s conclusion.” McKinney v. Apfel, 
    228 F.3d 860
    , 863 (8th Cir.
    2000). To determine whether substantial evidence exists, “we consider evidence that
    supports the Commissioner’s conclusion, along with evidence that detracts from that
    conclusion.” Carlson v. Astrue, 
    604 F.3d 589
    , 592 (8th Cir. 2010). “If, after review,
    we find it possible to draw two inconsistent positions from the evidence and one of
    those positions represents the Commissioner’s findings, we must affirm the decision
    of the Commissioner.” Johnson v. Barnhart, 
    390 F.3d 1067
    , 1070 (8th Cir. 2004)
    (internal quotation omitted). We review any disputed legal conclusions of the ALJ de
    novo. 
    Carlson, 604 F.3d at 592
    . The Administration has updated its regulations to
    use the term “intellectual disability” rather than “mental retardation,” but the agency
    resolved this case under the former regulations, so we use the terminology that
    appears in the briefs and administrative decision.
    The ALJ analyzed Ash’s claim under the five-step sequential evaluation process
    used to consider disability claims. 20 C.F.R. §§ 404.1520, 416.920; see also Bowen
    v. Yuckert, 
    482 U.S. 137
    , 140-42 (1987). At step one, the ALJ noted that Ash had not
    engaged in substantial gainful activity since June 26, 2010, the alleged onset date of
    her disability. At step two, the ALJ found that Ash had severe impairments in the
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    form of neck and back pain, headaches, mild mental retardation, and depression.
    Next, at step three, the ALJ concluded that Ash’s impairments did not meet or
    medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
    Appendix 1. Proceeding to step four, the ALJ found that Ash had the residual
    functional capacity to perform light work with a variety of nonexertional limitations
    but noted that Ash was unable to perform her past work as a cashier. Finally, at step
    five, the ALJ determined that Ash remained able to perform other jobs in the national
    economy, such as housekeeper or cafeteria attendant, and therefore found that Ash
    was not disabled under the terms of the Social Security Act. Ash takes issue with the
    ALJ’s conclusion at step three of the sequential evaluation.
    Ash argues that the ALJ erred in finding that she did not meet the requirements
    for mental retardation in Listing 12.05C. A claimant who meets the listing at step
    three is considered conclusively disabled, and the analysis does not continue to steps
    four and five. 20 C.F.R. §§ 404.1520(d), 416.920(d); 
    Yuckert, 482 U.S. at 141
    .
    Listing 12.05C states:
    12.05 Mental Retardation: Mental retardation 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.
    The required level of severity for this disorder is met when the
    requirements in A, B, C, or D are satisfied.
    ...
    C. 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;
    -6-
    20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C (revised Sept. 3, 2013, to refer to
    “intellectual disability” rather than “mental retardation”).
    To meet the requirements of Listing 12.05, a claimant must demonstrate that
    she suffers from deficits in adaptive functioning that initially manifested during the
    developmental period. See Maresh v. Barnhart, 
    438 F.3d 897
    , 899 (8th Cir. 2006).
    The claimant also must meet the requirements of one of the four subsections lettered
    A through D. These are separate and independent requirements. See 20 C.F.R. Pt.
    404, Subpt. P, App. 1, § 12.00A (“If your impairment satisfies the diagnostic
    description in the introductory paragraph [of Listing 12.05] and any one of the four
    sets of criteria, we will find that your impairment meets the listing.”); Cheatum v.
    Astrue, 388 F. App’x 574, 576 (8th Cir. 2010) (per curiam); see also Randall v.
    Astrue, 
    570 F.3d 651
    , 656-62 (5th Cir. 2009) (per curiam).
    As we understand the administrative decision, the ALJ found that Ash did not
    meet Listing 12.05C because she failed to show “deficits in adaptive functioning” as
    required by the opening paragraph of the listing. The ALJ acknowledged that Ash had
    IQ scores in the range required by Listing 12.05C but concluded that those scores
    were “not a true reflection of her adaptive functioning ability.” The ALJ observed that
    Ash lived independently, performed personal care tasks and household chores, drove
    a car, used a computer, operated a cash register, and socialized with others. The ALJ
    found that Ash had only mild restriction in her activities of daily living and that she
    had moderate difficulties in social functioning, concentration, and persistence.
    Ash argues that she exhibited significantly subaverage intellectual functioning
    that manifested itself prior to age 22. She cites her learning difficulties, her placement
    in special education classes, and her father’s testimony that he had to repeat things
    often to Ash when she was growing up. Ash also asserts that she received special
    accommodations from her manager when she worked as a cashier, that she cannot
    calculate change in her head, that she needed help from her father to manage her
    -7-
    checking account, that she receives public assistance to pay her rent and to buy food,
    and that her parents help her to pay her utility bills. She relies on statements by Dr.
    Vowell that her “[c]urrent intellectual assessment, educational history, and adaptive
    functioning indicate [her] current level of intellectual functioning falls within the mild
    range of mental retardation.”
    Other medical evidence, however, supports the ALJ’s findings. In the same
    report relied upon by Ash, Dr. Vowell was asked to address how Ash’s mental
    impairments interfered with her day-to-day adaptive functioning. Dr. Vowell did not
    identify any interference and noted that Ash was capable of driving unfamiliar routes,
    shopping independently, managing her own finances, and completing basic household
    chores and activities of daily living. He observed that Ash displayed moderate
    difficulty sustaining attention and concentration but noted no other deficiencies in
    adaptive functioning. Dr. Kelly’s report likewise observed that Ash has a ten-year
    work history and found Ash to be “adaptively functional.” While evidence that Ash
    is able to perform work is not relevant if she otherwise meets the requirements of
    Listing 12.05C, 
    Yuckert, 482 U.S. at 141
    , evidence of her ability to work is relevant
    to show whether or not she has demonstrated the required deficits in adaptive
    functioning. Cheatum, 388 F. App’x at 576 n.3. We thus conclude that substantial
    evidence supports the ALJ’s conclusion that Ash failed to demonstrate deficits in
    adaptive functioning as required by Listing 12.05C.
    Ash complains that the ALJ’s determination at step two that she had a severe
    impairment of mild mental retardation necessarily implies that she has deficits in
    adaptive functioning at step three, so that the administrative decision is internally
    inconsistent. Citing the Diagnostic and Statistical Manual of Mental Disorders,
    Fourth Edition, Ash observes that a medical diagnosis of mental retardation requires
    deficits or impairments in present adaptive functioning “in at least two of the
    following areas: communication, self-care, home living, social/interpersonal skills,
    use of community resources, self-direction, functional academic skills, work, leisure,
    -8-
    health, and safety.” Diagnostic and Statistical Manual of Mental Disorders 46 (Am.
    Psychiatric Ass’n ed., 4th ed. 1994). She reasons that once the ALJ found a severe
    impairment of mild mental retardation at step two, the ALJ logically could not find
    that Ash lacked deficits in adaptive functioning for purposes of Listing 12.05C at step
    three.
    The ALJ’s findings in this case are not logically inconsistent. In finding that
    Ash had a “severe impairment” of “mild mental retardation” at step two, the ALJ cited
    Dr. Vowell’s finding that Ash’s IQ scores “were within the range of mild mental
    retardation” and noted his diagnosis of “mild mental retardation.” A “severe”
    impairment at step two is one that “significantly limits” the claimant’s “physical or
    mental ability to do basic work activities,” 20 C.F.R. §§ 404.1520(c), 416.920(c), so
    the ALJ must have found that Ash’s mental impairment satisfied this standard. But
    the analysis at step two did not require the ALJ to address whether Ash exhibited
    “deficits in adaptive functioning” within the meaning of Listing 12.05. When
    discussing Ash’s impairment at step two, the ALJ relied on Dr. Vowell’s
    opinion—including his failure to note any interference with day-to-day adaptive
    functioning—in determining that Ash “does not have significant limitations with day
    to day adaptive functioning.” The ALJ concluded that the doctor’s findings about
    Ash’s adaptive functioning did not support a full scale IQ score of 57.
    At step three, to determine whether Ash met or equaled the listing for “mental
    retardation,” the ALJ addressed whether Ash manifested “deficits in adaptive
    functioning.” The deficits that are necessary to meet Listing 12.05 do not necessarily
    mirror findings about “adaptive functioning” that accompany a medical diagnosis of
    “mild mental retardation.” “[T]he medical standard for mental retardation is not
    identical to the legal standard.” Cox v. Astrue, 
    495 F.3d 614
    , 618 n.4 (8th Cir. 2007).
    When defining “mental retardation” for purposes of Listing 12.05, the Social Security
    Administration declined to use the definition of “mental retardation” found in the
    Diagnostic and Statistical Manual of Mental Disorders. See 
    Maresh, 438 F.3d at 899
    .
    -9-
    Because the listing is designed to identify persons who are unable to work, rather than
    to diagnose a medical condition, the inquiries into adaptive functioning may differ.
    See generally Comm. on Disability Determination for Mental Retardation, Nat.
    Research Council, Mental Retardation: Determining Eligibility for Social Security
    Benefits 22-24 (Daniel J. Reschly et al., eds., 2002). Thus, even assuming that the
    ALJ adopted Dr. Vowell’s medical diagnosis of “mild mental retardation” at step two,
    the ALJ did not necessarily conclude that Ash was afflicted with “significantly
    subaverage general intellectual functioning with deficits in adaptive functioning” for
    purposes of Listing 12.05 at step three.2
    Ash contends that the ALJ’s decision conflicts with Lott v. Colvin, 
    772 F.3d 546
    (8th Cir. 2014), where a claimant argued that an ALJ’s findings of a severe
    impairment of mild mental retardation at step two and no deficits in adaptive
    functioning at step three were inconsistent. This court remanded the case for the ALJ
    “to resolve both the internal inconsistencies in her decision and the unexplained
    inconsistencies with [a clinical psychologist’s] opinion.” 
    Id. at 551.
    The record in
    Lott, however, was materially different from the record here.
    2
    The concurring opinion, citing decisions from other circuits, suggests that the
    limitations arising from a severe impairment of mild mental retardation at step two of
    the analysis must be the same as the deficits in adaptive functioning required to meet
    Listing 12.05 at step three. But the cited authorities do not address this question. The
    cases accept a definition of “adaptive functioning” drawn from the Diagnostic and
    Statistical Manual of Mental Disorders (4th ed.) (i.e., “how effectively individuals
    cope with common life demands and how well they meet the standards of personal
    independence expected of someone in their particular age group, sociocultural
    background, and community setting”), but they do not discuss whether deficits or
    impairments in as few as two of eleven areas of adaptive functioning for purposes of
    a medical diagnosis is equivalent to the “deficits in adaptive functioning”
    contemplated in Listing 12.05 that prevent a claimant from working.
    -10-
    The psychologist in Lott diagnosed the claimant with “mild mental retardation”
    by observation alone, without an IQ test. 
    Id. at 550.
    The diagnosis was based in part
    on the claimant’s “general level of adaptive functioning,” as established by evidence
    that the claimant did not complete high school, could not read or understand
    newspapers, had a history of violent altercations, and was committed to the Arkansas
    State Hospital after attempting to burn down an occupied home. 
    Id. at 548,
    550-51.
    Despite finding a severe impairment of mild mental retardation at step two based on
    that evidence, however, the ALJ concluded at step three that the “claimant’s own
    account of his functioning” and his work history precluded a finding that he had
    deficits in adaptive functioning. 
    Id. at 551.
    The ALJ’s conflicting assessment of
    adaptive functioning at two different steps of the analysis was internally inconsistent
    and inconsistent with the psychologist’s opinion.
    An inconsistency of the sort that plagued the administrative decision in Lott is
    not present here. The ALJ found at both steps two and three that Ash’s adaptive
    functioning was not reflective of her IQ score and that she did not have significant
    limitations in day-to-day adaptive functioning. The ALJ relied on a reasonable
    interpretation of Dr. Vowell’s report in making those findings. That the ALJ
    characterized Ash’s impairment as mild mental retardation at step two did not
    preclude the ALJ on this record from finding at step three that Ash did not exhibit
    deficits in adaptive functioning. Cf. 
    Cox, 495 F.3d at 618
    .
    *      *       *
    For these reasons, we conclude that substantial evidence supported the ALJ’s
    finding that Ash did not meet Listing 12.05C and that the ALJ’s findings at step two
    and step three of the sequential evaluation were not inconsistent. The judgment of the
    district court is affirmed.
    -11-
    KELLY, Circuit Judge, concurring.
    I concur in the outcome of this case. I write separately because I disagree with
    the court’s analysis of the ALJ’s findings at steps two and three. Ante at 9–10. A
    finding that a mental retardation3 diagnosis is a “severe impairment” requires a finding
    that it “significantly limits” the claimant’s “physical or mental ability to do basic work
    activities.” I disagree, however, with the court’s conclusion that “‘deficits in adaptive
    functioning’ within the meaning of Listing of 12.05” are substantively different than
    limitations on adaptive functioning for purposes of a step two diagnosis. Though I
    recognize that “[t]he medical standard for mental retardation is not identical to the
    legal standard,” Cox v. Astrue, 
    495 F.3d 614
    , 618 n.4 (8th Cir. 2007), both require
    findings of either limitations or deficits in adaptive functioning. Courts have
    understood Listing 12.05C as simply adopting the medical definition of “adaptive
    functioning.” See Talavera v. Astrue, 
    697 F.3d 145
    , 153 (2d Cir. 2012); Novy v.
    Astrue, 
    497 F.3d 708
    , 710 (7th Cir. 2007); O’Neal v. Comm’r of Soc. Sec., 614 F.
    App’x 456, 459 (11th Cir. 2015) (unpublished per curiam); Burbridge v. Comm’r of
    Soc. Sec., 572 F. App’x 412, 415 n.2 (6th Cir. 2014) (unpublished per curiam); cf.
    Diagnostic and Statistical Manual of Mental Disorders 46 (Am. Psychiatric Ass’n ed.,
    4th ed. 1994).
    As I understand the administrative decision, the ALJ implicitly rejected Dr.
    Vowell’s diagnosis of mild mental retardation at step two. Although the heading of
    step two identifies “mild mental retardation” as one of Ash’s severe impairments, the
    ALJ immediately repudiated that finding, both with respect to the level of adaptive
    functioning and the IQ score that level of functioning implies. The ALJ did not
    expressly conclude that the mild mental retardation finding is not supported by the
    record, or that it does not amount to a severe impairment, but his reasoning explaining
    3
    Like the court, I use the term “mental retardation” rather than the updated term
    “intellectual disability.”
    -12-
    his step two findings was such that he cannot have found her to be mildly mentally
    retarded. This implicit conclusion is further supported by the ALJ’s discussion at step
    three.
    “We have often held that an arguable deficiency in opinion-writing technique
    is not a sufficient reason for setting aside an administrative finding where the
    deficiency probably has no practical effect on the outcome of the case.” Bryant on
    Behalf of Bryant v. Apfel, 
    141 F.3d 1249
    , 1252–53 (8th Cir. 1998) (quotations and
    alterations omitted) (concluding that the ALJ’s analysis at step three clarified the
    ALJ’s “earlier imprecise wording” at step two where the ALJ identified headaches as
    a “severe impairment”). Based on my review of the record, I believe substantial
    evidence exists to support the ALJ’s conclusion that Ash is not disabled.
    Accordingly, I concur.
    ______________________________
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