Elmer D. Muncy v. Kenneth S. Apfel ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2210
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Elmer D. Muncy, *
*
Appellant, *
* Appeal from the United States
vs. * District Court for the Western
* District of Missouri
Kenneth S. Apfel, *
Commissioner of Social Security, *
*
Appellee. *
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Submitted: January 11, 2001
Filed: April 12, 2001 (Corrected Opinion 4/19/01)
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Before LOKEN and BYE, Circuit Judges, and BATAILLON,1 District Judge.
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BATAILLON, District Judge.
Elmer Muncy was originally awarded disability benefits under Title II of the
Social Security Act, 42 U.S.C. § 401 et seq., in July 1987 and supplemental disability
benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., in June
1988. Muncy now appeals the judgment of the district court affirming the final
decision of the Commissioner of Social Security discontinuing his benefits.
1
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska, sitting by designation.
Our review is limited to determining whether the Commissioner’s decision is
supported by substantial evidence in the record as a whole, that is, evidence that
reasonable minds would accept as adequate to support the Commissioner’s
conclusion. 42 U.S.C. §§ 405(g), 1382 (c)(3); Richardson v. Perales, 402 U.S. 389,
401 (1971); Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999). The review is more than
“a search of the record for evidence supporting the Secretary’s findings.” Gavin v.
Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). In determining substantiality, the court
must also balance the weight of evidence that detracts from the Commissioner’s
decision. Because of the insufficiency of the record with regard to Muncy’s mental
status, we must remand this matter to the Commissioner for further proceedings.
I. Background
A. Medical Record
Muncy was forty-one at the time of the hearing before the administrative law
judge (ALJ) in April 1997. He is functionally illiterate, although he finished tenth
grade in special education classes. He worked a series of hard physical labor jobs
until 1986 when he suffered a heat stroke while working as an oil field roustabout.
He tried several other jobs, but found that he had developed severe heat intolerance.
The medical records do not reveal an exact cause for the heat intolerance.
The medical records do show, however, that Muncy has several health
problems apart from heat intolerance, including obesity; hypertension; spinal arthritis;
a small herniated disk at the L5-S1 level; a pinched nerve; headaches; and chronic
sinusitis, sore throats, and earaches. In addition, he claims significant pain on the left
side of his body as a result of an accident in 1991 when he fell through the rotting
floor of his Housing Authority apartment. He alleges that he has experienced pain,
periodic numbness, spasms, and swelling in various parts of the left side of his body
since the accident, along with chronic neck, buttock, lower back, and leg pain.
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In 1993, a neurosurgeon discovered that the calf of Muncy’s left leg had
atrophied one inch and that he had sensory hypalgesia along the L4 dermatome down
the calf into the big toe, likely caused by the piriform muscle compressing the
perineal portion of the sciatic nerve. Also in 1993, a neurologist diagnosed headaches
and neck pain resulting from the 1991 injury. Nerve conduction studies showed a
slight prolongation of the ulnar distal motor latency, suggesting a mild ulnar
neuropathy. An MRI of Muncy’s cervical spine showed a mid-thoracic vertebral
lesion.
In 1996, another neurosurgeon found some limitation of motion in Muncy’s
neck and low back with spasms in the low back on both sides. Grip strength was 240
on the dominant right hand and 80 on the left. The doctor found numbness in the
entire left hand and left foot. He diagnosed chronic cervical and lumbrosacral
arthritis, by history; chronic cervical strain; chronic lumbrosacral strain; small,
central, herniated lumbar disc; and cerebral concussion, Grade I, by history. The
doctor said that Muncy could lift twenty pounds occasionally, and could sit no more
than thirty minutes at a time and no more than six hours a day.
More than one doctor, however, has suggested that Muncy demonstrates drug-
seeking behavior and questioned his attempts to procure pain medications. The
neurologist whom Muncy saw in 1993 questioned why Muncy continued to complain
of such significant pain, and wondered if “there is some secondary gain associated
with these complaints.” Administrative Record (AR) 340.
B. Mental Status
Muncy’s mental status is of primary concern in this appeal. During his initial
benefit determination in 1988, a psychologist found that on the WAIS-R Muncy’s full
scale IQ was 59, verbal IQ was 57, and performance IQ was 64, placing him in the
mild range of retardation. That result qualified him for benefits under the section
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12.05(B) listing for mental retardation. Section 12.05(B) requires a “valid verbal,
performance, or full scale IQ of 59 or less.” 20 C.F.R. Pt. 404, Subpt. P, App. 1.
During the continuing disability review in 1994, however, another
psychologist, Dr. Stevens, tested Muncy and found that on the WAIS-R, his full scale
IQ was 84, verbal IQ was 84, and performance IQ was 84. An IQ of 84 placed him
in the low normal range, described by “borderline intellectual functioning.” Holz v.
Apfel, 191 F.3d 945, 947 (8th Cir. 1999); Thomas v. Sullivan, 876 F.2d 666, 668 n.1
(8th Cir. 1989).
In his report, Dr. Stevens also noted that he had difficulty “communicat[ing]
concepts to [Muncy] as he has difficulty listening.” Dr. Stevens found that Muncy had
a second grade reading and spelling level and a third grade arithmetic level. The
results of the short form MMPI suggested “some schizoid personality traits in an
individual who has some periodic situational depression and preoccupation with his
condition, referred to as psychological factors affecting physical condition. This
represents some emotional distress but is not at a severe level.” AR 308. Muncy did
not score well on work simulation testing. On the Crawford Small Parts Dexterity
Test, Muncy placed in the fourth percentile on Part I and in the third percentile on
Part II. Muncy could not complete the twenty-minute Valpar Simulated Assembly
Work Sample because pain in his back left him stooping, holding onto the table, after
only about five minutes.
Dr. Stevens concluded that before Muncy’s 1991 accident, “he had some
remaining vocational and earnings potentials, but the injury to his back has removed
these potentials and he can now look forward to a life of chronic discomfort and
feelings of uselessness. Thus, the prognosis is poor and I expect limited change in the
foreseeable future.” Id.-4-
C. Hearing Testimony
Muncy testified at the hearing before the ALJ, along with his wife and his half-
brother. Muncy said that his pain was worsening in his mid to upper back, neck, left
leg, and left arm, and that his left leg and arm were also numb. Standing and sitting
aggravated the pain. He said that he spends all day watching TV, occasionally
stepping out on his porch for fresh air. He drives his wife to and from work each day
and grocery shops once a week. He said he could sit ten minutes; stand five to ten
minutes; walk two blocks, such as a couple of times around a large discount store;
and lift a gallon of milk with his right arm. He uses a cane unless his left wrist and
arm spasm. He said he could not bend, twist, or crawl.
Muncy’s wife of nineteen years noted that Muncy cannot read or write or take
care of the checkbook or their finances. In fact, she filled out all the Social Security
applications and forms included in the Administrative Record. She says that he has
trouble understanding what is read to him and concentrating on what is said to him.
She testified that Muncy has “heat strokes,”during which his face turns white, his
voice changes, and he trembles. She also testified that she knows Muncy is in nearly
constant pain by the tearing in his eyes.
D. ALJ’s Decision
The ALJ found that 1) Muncy’s cervical and lumbar strain was severe enough
to reduce his ability to work, but not severe enough to meet or equal the criteria of
any impairment in the listings; 2) Muncy’s new IQ score of 84 took him outside the
criteria of section 12.05(B) of the listings2; 3) Muncy experienced medical
2
The Social Security regulation in effect at the time of the ALJ’s decision
provided that any IQ over 80 was classified as a non-severe impairment. See Soc. Sec.
Ruling 82-54. In addition, Muncy’s new IQ of 84 disqualified him for benefits under
two other sections of 12.05, since those sections apply only to claimants with IQs of
60 through 70. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.05(C) and (D).
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improvement related to his ability to work and, as of January 1, 1996, had the residual
functional capacity to perform a full range of light work, despite his illiteracy; 4)
other than exertional impairments caused by his cervical and lumbar strain, Muncy
had no additional nonexertional impairments to reduce the light work base; 5)
occupations existed in the national and regional economies in significant numbers
that Muncy could perform regardless of his impairments; and 6) while Muncy’s
impairments and residual functional capacity precluded him from performing his past
relevant work, he was no longer disabled as of January 1, 1996. AR 17-18.
The ALJ discredited Muncy’s allegations of pain because they were not based
on the objective findings by treating and examining physicians, because Muncy
sought medical treatment only sporadically and was not taking any pain medication,
and because Muncy did not evidence discomfort during the hearing. The ALJ also
noted that the medical records did not mention heat exhaustion except as a historical
incident or muscular weakness. Further, the medical records showed no basis for a
claim of nerve involvement related to Muncy’s neck or left arm. The ALJ specifically
discounted the large discrepancy in grip strength between Muncy’s two hands as the
result of Muncy’s right-handedness, but he nowhere acknowledged the one-inch
atrophy in Muncy’s left calf. The ALJ noted that one of Muncy’s physicians wrote
that Muncy could perform significant work-related activities, but the ALJ specifically
discounted the disability applications completed by Muncy’s orthopedic surgeon as
inconsistent with the remainder of the medical record and with his own medical notes.
In addition, the ALJ gave minimal weight to the limitations Dr. Stevens
assessed in Muncy’s ability to perform mental work-related activities because “Dr.
Stevens relied on [Muncy’s] statements which have no credibility and the testing he
performed which showed no problems at a severe level.” AR 15. Dr. Stevens had
written that Muncy had an Axis I diagnosis of pain disorder due to general medical
condition, and had ranked Muncy as “poor” on his ability to maintain attention and
concentration on the job; to understand, remember, and carry out complex job
instructions; or to demonstrate reliability. Dr. Stevens had ranked Muncy as “fair” on
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his ability to deal with the public or with work stresses and to understand, remember,
and carry out detailed, but not complex, job instructions. AR 418-19.
The ALJ did not offer the testimony of a vocational expert, instead applying
Rule 202.16 of the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App.
2, Reg. 4.
II. Discussion
A. IQ Scores
An ALJ may disregard a claimant’s IQ score when it is derived from a one-time
examination by a non-treating psychologist, particularly if the score is inconsistent
with the claimant’s daily activities and behavior. Clark v. Apfel, 141 F.3d 1253, 1255-
56 (8th Cir. 1998). The Social Security regulations do not specify, however, which
score the ALJ should disregard when there are differing scores from two apparently
valid IQ tests. The issue here is whether the ALJ correctly disregarded the IQ score
from a one-time examination by a non-treating psychologist apparently only because
it is older – and significantly lower – than a later second score.
At least one court has suggested that the regulations require the ALJ to reach
the opposite conclusion in this situation, rejecting the higher score. See Ray v.
Chater, 934 F. Supp. 347, 350 (N.D. Cal. 1996). In Ray, the claimant had two IQ
scores: a 72 on a 1993 test and a 67 on a 1995 test. The ALJ relied on the higher score
with the result the claimant could not qualify for benefits under section 12.05(D). The
Social Security regulations provide, however, that when more than one IQ score is
reached from the test administered, such as the verbal, performance, and full scale IQs
obtained from the tests in the Weschler series that Dr. Stevens used in this case, the
Commissioner must use “the lowest of these in conjunction with 12.05." 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.00(D). The Ray court observed that this regulation
might create an inference that “when multiple I.Q. scores are available [from IQ tests
administered a different times,] the Regulations prefer the lowest score,” 934 F. Supp.
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at 350, and remanded to the Commissioner for further development of the record with
regard to the claimant’s mental condition.
The ALJ here neither addressed the discrepancy between Muncy’s two IQ
scores nor discussed what factors called into question the first score’s validity.
Instead, the ALJ apparently accepted the validity of the second test over the first and
attributed the twenty-five point increase in Muncy’s IQ to “medical improvement.”
To discontinue a claimant’s benefits because his or her medical condition has
improved, the Commissioner must “demonstrate that the conditions which previously
rendered the claimant disabled have ameliorated, and that the improvement in the
physical condition is related to claimant’s ability to work.” Nelson v. Sullivan, 946
F.2d 1314, 1315 (8th Cir. 1991) (citing 20 C. F. R. § 404.1594(b)(2)-(5)). Whether
a claimant’s condition has improved is primarily a question for the trier of fact,
generally determined by assessing witnesses’ credibility. Id. at 1316.
The regulations define mental retardation as “significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period” before age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.05. Mental retardation is not normally a condition that improves as an affected
person ages. It is highly unlikely that an adult could gain twenty-five IQ points – a
42% increase – in six years.
Rather, a person’s IQ is presumed to remain stable over time in the absence of
any evidence of a change in a claimant’s intellectual functioning. See, e.g., Branham
v. Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985) (absent contrary evidence, an IQ test
taken after the insured period correctly reflects claimant’s IQ during the insured
period); Guzman v. Bowen, 801F.2d 273, 275 (7th Cir. 1986) (claimant had low IQ
during onset of disability in 1979 rather than just when first IQ tested in 1982);
Luckey v. Department of Health & Human Servs., 890 F.2d 666, 668-69 (4th Cir.
1989) (ALJ may assume claimant’s IQ remained relatively constant in absence of
evidence showing a change in claimant’s intelligence functioning); Holmes v. Apfel,
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1999 WL 731769, *5 (N.D. Ill. 1999) (IQ score presumptively reflects person’s IQ
throughout life, no matter how old the person was when test first administered);
Ouellette v. Apfel, 2000 WL 1771122, *3 (D. Me. 2000) (absent contrary evidence,
“a person’s IQ and/or the condition of mental retardation is presumed to have been
approximately constant throughout his/her life”). See also Sird v. Chater, 105 F.3d
401, 402 n.4 (8th Cir. 1997). The ALJ here cited no evidence demonstrating a
dramatic upswing in Muncy’s intellectual or adaptive functioning between 1988 and
1994, other than the higher second IQ score. Nor did the ALJ challenge the validity
of the first IQ score as inconsistent with other evidence in the record. Muncy remains
unable to read, write, manage his finances, or even fill out Social Security
applications. He thus still appears to be dependent on his wife for many activities of
daily living.
We therefore must remand this matter to the Commissioner for further analysis
to resolve the twenty-five point discrepancy between Muncy’s two IQ scores. The
Commissioner is directed to enter specific findings detailing why Muncy’s first IQ
score should not be adopted as the controlling score. Should the Commissioner find
after further analysis that Muncy’s second IQ score is in fact the controlling score, the
Commissioner is further directed to consider the effect of Muncy’s borderline
intellectual functioning as discussed in the following section.
B. Use of Guidelines
The ALJ found that Muncy’s exertional impairments of cervical and lumbar
strain limited Muncy to performing a full range of light work. The ALJ also found
that given Muncy’s “medical improvement,” i.e., the twenty-five point increase in his
WAIS-R IQ scores, Muncy had no additional nonexertional impairments to further
reduce his work base. As a consequence, the ALJ did not use the testimony of a
vocational expert, relying instead on Rule 202.16 of the medical-vocational
guidelines. AR 16-17. Muncy argues that his nonexertional impairments of pain,
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muscle atrophy, neuropathy, and borderline intellectual functioning required the ALJ
to hear testimony from a vocational expert rather than relying on the guidelines.
Using the guidelines, an ALJ may find a claimant not disabled
if the claimant does not have nonexertional impairments, or if the
nonexertional impairment does not diminish the claimant’s RFC to
perform the full range of activities listed in the guidelines. If the
nonexertional impairments significantly affect the RFC, however, the
guidelines are not controlling and may not be used to direct a conclusion
of not disabled. ‘Adequate training and intellectual capacity are
presumed in the [g]uidelines and evidence that militates against those
presumptions makes the [g]uidelines inapplicable.’
Holz v. Apfel, 191 F.3d at 947 (citations omitted) (alterations in original). The issue
here, then, is whether the ALJ properly found that Muncy had no nonexertional
impairments. To resolve the issue, we remand the matter to the Commissioner for
further findings consistent with this opinion.
Even assuming that Muncy’s IQ score of 84 is valid, it nevertheless represents
borderline intellectual functioning. Thomas v. Sullivan, 876 F.2d at 668 n.1. Such a
score indicates a “significant nonexertional impairment that needed to be considered
by the VE.” Holz v. Apfel, 191 F.3d at 947 (citing Foreman v. Callahan, 122 F.3d 24,
26 (8th Cir. 1997); Lucy v. Chater, 113 F.3d 905, 908 (8th Cir. 1997)). Consequently,
further proceedings are needed to determine the effect of Muncy’s borderline
intellectual functioning. From the evidence developed thus far, it appears that Muncy
is illiterate, cannot write or manage his own finances, cannot perform his past relevant
work, has no relevant skills, and is physically limited to light work. On remand, the
Commissioner is directed to consider whether the guidelines suggest a finding of
disability in the particular circumstances of this case.
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A question also exists about whether the ALJ properly discredited Muncy’s
subjective complaints of pain when determining that Muncy had no nonexertional
impairments. The ALJ stated that Muncy’s claims were not credible because the
record lacked objective medical findings by treating and examining physicians and
because Muncy did not take pain medication, frequent doctors’ offices, or exhibit
discomfort at the thirty-six minute hearing.
The medical record, however, does not appear to support these findings. Muncy
saw doctors regularly after his 1991 accident; several of these doctors prescribed
narcotic pain relievers or muscle relaxants for his pain. Moreover, the record
objectively reports that Muncy’s left calf has atrophied a full inch, that his grip
strength varies markedly between his hands, and that he experiences neuropathy in
his left hand and leg. In addition, Muncy’s failure to “sit and squirm” with pain
during the hearing cannot be dispositive of his credibility. See Miller v. Sullivan, 953
F.2d at 422 (observing that a claimant’s appearance and demeanor at the hearing can
be deceiving).
We therefore direct the Commissioner also to reconsider on remand Muncy’s
credibility with respect to his subjective complaints of pain , using the familiar factors
found in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
III. Conclusion
Accordingly, the judgment of the District Court is reversed, and the cause
remanded to that court with instructions to remand the matter to the Commissioner
of the Social Security Administration for further proceedings in light of this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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