Tenesha Reed v. Carolyn W. Colvin , 779 F.3d 725 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2112
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Tenesha Vernee Reed
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Batesville
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Submitted: December 18, 2014
Filed: February 5, 2015
[Unpublished]
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Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
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PER CURIAM.
Tenesha Vernee Reed appeals the district court’s order affirming the denial of
disability insurance benefits and supplemental security income. The sole issue on
appeal is whether the administrative law judge (ALJ) should have found Reed
disabled under Listing 12.05C, which requires (1) a valid verbal, performance, or full
scale IQ of 60-70; (2) significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested before age 22; and (3) a physical
or other mental impairment imposing an additional and significant work-related
limitation of function. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C; Maresh v.
Barnhart, 438 F.3d 897, 899 (8th Cir. 2006) (discussing Listing 12.05C’s
requirements); see also McDade v. Astrue, 720 F.3d 994, 1001 (8th Cir. 2013)
(claimant bears burden of demonstrating that impairment meets all specified criteria
for listing). The ALJ determined that Reed’s impairments did not meet or medically
equal a listing, finding no evidence of mild mental retardation with an IQ score of 60-
70, or of subaverage adaptive functioning with a physical or mental impairment
imposing added and significant functional limitations; and finding that the only severe
mental impairment was borderline intellectual functioning. See Hulsey v. Astrue, 622
F.3d 917, 920 n.3 (8th Cir. 2010) (individuals with borderline intellectual functioning
have IQ scores of 71-84). We conclude that the ALJ’s determination is not supported
by substantial evidence. See Hill v. Colvin, 753 F.3d 798, 800 (8th Cir. 2014) (de
novo review).
Consulting psychologist Kenneth Hobby administered a WAIS-III intelligence
test to Reed in November 2007, resulting in a verbal IQ of 68, performance IQ of 67,
and full-scale IQ of 65; and he diagnosed mild mental retardation. He commented on
his 2007 written report that the test results were consistent with Reed’s level of
adaptive behavior, work history, and background information; there were no obvious
mental or emotional factors that might have impacted her scores; Reed appeared
honest, open, and positive; the scores seemed to give an accurate indication of her
current functioning; and there were no indications of symptom exaggeration or
malingering that might have compromised his examination findings. Dr. Hobby
reevaluated Reed in December 2010 and issued another report containing comments
about the 2007 intelligence test results, including that Reed’s ability to recall numbers
was in the “normal range” and inconsistent with her 2007 IQ scores, “suggest[ing]
possible malingering on that test.” In the 2010 report, Dr. Hobby indicated that Reed
functioned within or near the mentally retarded range, but also wrote that she
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“present[ed] as higher than her scores on the WAIS-III would indicate.” He estimated
that Reed’s level of intellectual functioning was “at a borderline/upper mentally
handicapped” level; and his diagnoses included “Borderline/upper mild intellectually
handicapped Intellectual Functioning.”
The ALJ relied in part on Dr. Hobby’s 2010 comments, and also on the fact that
Reed had worked from 2003-2009 in a medium unskilled job, in finding that her
allegations of a disabling intellectual level were not entirely credible and thus that an
IQ score “in the 70’s”–in the range for borderline intellectual functioning–would be
more representative of her actual functioning. However, it appears from Dr. Hobby’s
2010 report that he questioned some, but not all, of the 2007 IQ scores, which all fell
within the requisite range for Listing 12.05C; and the regulations state that the lowest
verbal, performance, or full scale IQ score is used for purposes of the listing. See 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00D.6.e. We find it unclear whether Dr.
Hobby’s comments on the 2010 report, and his failure in that report to give a
straightforward determination of Reed’s intellectual level, amounted to an opinion that
the 2007 test results were invalid. Cf. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.
2005) (ALJ’s duty to develop record fully may include re-contacting treating
physician for clarification of opinion when crucial issue is undeveloped). As to the
ALJ’s reliance on Reed’s work history, Listing 12.05C assumes mildly mentally
retarded individuals can work if their only impairment is mild mental retardation. See
Lott v. Colvin, 772 F.3d 546, 551-52 & n.4 (8th Cir. 2014) (mildly mentally retarded
individuals usually achieve vocational and social skills adequate for minimal self-
support).
We disagree with the Commissioner’s contentions on appeal that a comment
in Dr. Hobby’s 2007 report showed he suspected malingering then, that the ALJ found
Reed’s daily activities inconsistent with a disabling intellectual level, and that Reed’s
testimony concerning playing the piano and helping care for her sister’s children was
inconsistent with her 2007 IQ scores. Reed’s complete testimony regarding her daily
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activities, coupled with her reports to Dr. Hobby about her limited activities, is
consistent with someone whose IQ scores are those reflected in the 2007 testing. See
id. at 551 (ALJs could nearly always point to performance of rudimentary activities
of daily living, thus making it practically impossible for noninstitutionalized mentally
retarded claimants to show significantly sub-average general intellectual functioning
with deficits in adaptive functioning); cf. Bailey v. Apfel, 230 F.3d 1063, 1065 (8th
Cir. 2000) (claimant’s reliance on family members to assist him, and his daily
activities of watching television and visiting friends did not call into question his IQ
results, which met criteria of Listing 12.05C).
The Commissioner does not challenge, or even address, Reed’s contentions
concerning Listing 12.05C’s two criteria in addition to valid IQ test results. We agree
with Reed that there was evidence showing that her mental retardation initially
manifested itself before age 22, as she had attended special education classes and
repeated several grades, had problems with math and learning to read, and had quit
school when told she had to repeat the eleventh grade. See Maresh, 438 F.3d at 900.
She also met the criteria of additional and significant work-related limitations of
function from a physical or other mental impairment, given the ALJ’s determination
that her anxiety disorder, history of surgery for a hand fracture, and morbid obesity
were severe impairments. See Lott, 772 F.3d at 549-50.
We thus reverse and remand to the district court with directions to return the
case to the Commissioner for further development of the record on the validity of the
2007 test results.
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