Tasha McGee v. Michael Astrue , 291 F. App'x 783 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3901
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Tasha A. McGee, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Southern
Michael J. Astrue, * District of Iowa
Commissioner of Social Security, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 13, 2008
Filed: September 5, 2008
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Before SMITH and GRUENDER, Circuit Judges, and ROSENBAUM, District
Judge.1
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PER CURIAM.
1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
Tasha A. McGee seeks disability benefits. The district court agreed with the
Commissioner of Social Security’s decision finding her ineligible. We affirm the
decision of the district court.2
I. Background
Tasha McGee was born on September 8, 1974. She attended regular classes
in school through tenth grade, before dropping out to have her first child. She later
earned her general equivalency diploma (“GED”). She and her family live in
Davenport, Iowa.
Ms. McGee has experienced intermittent bouts of depression, mood swings,
anxiety, and panic attacks throughout her life. These included two suicide attempts
while in her early twenties. She received mental health treatment in 1995 at age 21.
Thereafter, she required emergency room services related to panic attacks. She
received anti-anxiety medications, including Paxil and Xanax.
Ms. McGee worked sporadically at a series of unskilled jobs between 1994 and
2002. None lasted longer than a few months. The most she earned in a single year was
$2,761.35. She last worked on April 2, 2002. On April 29, 2002, she filed for
supplemental security income (“SSI”) disability benefits, claiming depression and
anxiety kept her from working.
Ms. McGee’s first SSI application claimed she could not work due to “sudden
rapid heartbeats, blackouts, hyperventilation, depression, anxiety attacks, mood swings,
headaches, chest pain.” The accompanying personal questionnaire she submitted in
support gave detailed information concerning her mental health and its effect on her
2
The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
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family, along with a work history and history of physical discomfort. The initial
examiner interviewed Ms. McGee by telephone in May, 2002, and found she had no
difficulty in reading, understanding, or coherency.
Following this interview, both Ms. McGee and her husband completed additional
questionnaires concerning Ms. McGee’s daily activities. They revealed her ability to
drive, clean house, help care for their children, including giving baths and getting them
dressed, and cook two meals a day. Ms. McGee stated she tried to read an hour every
day, including newspapers, magazines, and the Bible. She responded to the question,
“Do you understand and remember what you read?” by saying, “Sometimes I
remember and then somedays [sic] I have problems focusing on it.” Ms. McGee could
pay bills and manage money. Both Ms. McGee and her husband claimed her
irritability, panic attacks, and mood swings interfered with her ability to socialize, run
errands, do household work, and hold a job.
In July, 2002, as part of her application for benefits, Ms. McGee was evaluated
by Michael Stempniak, Ph.D., a clinical psychologist. Mr. Stempniak noted her
depression and anxiety. He administered tests which showed “her immediate memory
was in the low average range,” but “with more effort, her concentration tends to
improve.” She could identify recent presidents as “Bush, Clinton, Reagan,” but
identified five large cities as “California, Florida, New Mexico, Chicago, Texas.” She
recalled two famous people as “Clint Eastwood and Bill Cosby,” and correctly
answered questions involving addition and subtraction, although she did not do well in
multiplication. Mr. Stempniak diagnosed panic disorder with agoraphobia, and major
depressive disorder. His diagnosis was similar to that rendered by Rhonda Lovell,
Ph.D., who did a psychiatric review of Ms. McGee in August, 2002.
Ms. McGee’s application was denied in August, 2002, and reconsidered in
October of that year. She said her symptoms had not improved, and she submitted a
supplemental report on her daily activities. To the question “What do you do for
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relaxation or recreation?” she responded, “read a very good magazine or most of the
time sleep.” When asked “How often?” she responded, “everyday [sic].” A second
psychiatric review was included in the reconsideration. This was performed by Philip
R. Laughlin, Ph.D., on December 26, 2002. His review was consistent with Ms.
McGee’s prior diagnoses of major depressive and panic disorders.
Ms. McGee’s application was denied again in January, 2003. In August, 2003,
she requested a hearing before an Administrative Law Judge (“ALJ”). Prior to the
hearing, Ms. McGee again supplemented the record with updated medical information.
The new information showed that, in 2003 and 2004, Ms. McGee was treated at the
Vera French Community Mental Health Center in Davenport, Iowa. She was
prescribed Depakote, Klonopin, Zoloft, Lexapro, Seroquel, Inderal and Xanax. She
also had therapy every three weeks. Her progress notes reflect continuing mental
health issues.
The ALJ held a hearing in January, 2005, at which no testimony was taken. Ms.
McGee then supplemented the record with medical documentation, including a residual
functional assessment by Dr. Ciaccio, a psychiatrist who treated her since 2003. Dr.
Ciaccio noted depression and anxiety, and its effect on her ability to work.
A second hearing was held in August, 2005, when the ALJ took testimony. Ms.
McGee described her experience with anxiety, depression, and panic attacks. She
discussed raising her five children and the family’s activities. Charlene Bell, an
independent medical expert, concluded Ms. McGee met several presumptively
disabling criteria for depression and panic disorder3 “in the moderate sense.” Marian
Jacobs, a vocational expert, opined that Ms. McGee’s impairment “would preclude her
past relevant work as well as competitive employment.”
3
See 20 C.F.R. Part 404, subpart P, appendix1, Listings 12.04 and 12.06.
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After this hearing, the ALJ directed Ms. McGee to undergo testing by
psychologist Stanley Smith. In September, 2005, Mr. Smith administered the WAIS-III
test which showed a verbal IQ of 69, a performance IQ of 65, and a full scale IQ of 65.
He said her “effort and motivation appeared to be good; therefore, the results of
intellectual testing are thought to be a reliable estimate of her current intellectual
functioning.” Mr. Smith reported Ms. McGee as “able to read the vocabulary words
that were presented to her, but mostly only the simpler words. Her overall verbal
abstraction abilities were also within the impaired range, with very concrete common
sense/social judgment.”
Mr. Smith also administered the MMPI-2 test, which took Ms. McGee much
longer than normal to complete. Ms. McGee produced an invalid clinical profile. After
noting factors that might produce such a result, for example, “falsely claiming
psychological problems, confusion, and/or a low reading,” Mr. Smith concluded the
MMPI-2 profile was most likely invalid due to Ms. McGee’s low reading ability. He
diagnosed Ms. McGee with generalized anxiety disorder, major depressive disorder,
panic disorder without agoraphobia, and mild mental retardation. This is the first
record mention of any cognitive impairment.
Based on Mr. Smith’s report, Ms. McGee sought a supplemental hearing, which
was held in November, 2005. For the first time, she claimed she met Listing 12.05C
dealing with mental retardation. The ALJ took testimony from a second medical
expert, Dr. Sanford Pomerantz, another vocational expert, Julie Svec, and more
testimony from Ms. McGee.
Dr. Pomerantz, when asked to account for Ms. McGee’s IQ scores in relation
to the fact that she had not been in special education classes, stated he had “no
explanation why she scored retarded on the test unless perhaps she wasn’t trying her
best.” (A.R. 361.) He concluded Ms. McGee’s “longitudinal history isn’t consistent
with a diagnosis of mental retardation.”
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On behalf of the Commissioner, the ALJ rejected Ms. McGee’s claim, finding
she was not disabled. Ms. McGee timely sought judicial review of the decision. The
district court affirmed.
II. Analysis
While our review of the district court’s decision is de novo, our review of the
Commissioner’s decision is deferential. See Johnson v. Barnhart, 390 F.3d 1067, 1069
(8th Cir. 2004). We must affirm if the ALJ’s decision is “supported by substantial
evidence in the record as a whole.” Id. at 1070. “Substantial evidence is evidence that
a reasonable mind would find adequate to support a decision, considering both
evidence that detracts from and evidence that supports the Commissioner’s decision.”
Id. If the evidence allows two inconsistent conclusions, and one of them is the
Commissioner’s, we must affirm the Commissioner’s findings. See id.
The Commissioner uses a five-step sequential analysis to determine whether a
claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. A claimant must prove: first,
that she has not engaged in substantial gainful activity; second, that she has a medically
determinable severe impairment, as that term is defined in the regulations; third, she
may prove her impairment meets or equals a presumptively disabling impairment listed
in the regulations; if so, the claimant is presumed to be disabled, and no further analysis
is needed. If not, the analysis proceeds to a fourth step. Here, the claimant must prove
her impairment prevents her from performing her past relevant work; and fifth, if the
claimant carries her burden to this point, the Commissioner has the opportunity (and
burden) to prove there are other jobs the claimant can perform. Gonzales v. Barnhart,
465 F.3d 890, 894 (8th Cir. 2006); Johnson, 390 F.3d at 1070.
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The record shows the ALJ first determined Ms. McGee had not engaged in
substantial gainful activity. To establish step 2's severe impairment, Ms. McGee
presented evidence of anxiety disorder and affective disorder. She also offered Mr.
Smith’s report to show mild mental retardation. The ALJ agreed the anxiety disorder
and affective disorder, taken together, amounted to a medically determinable severe
impairment as defined in the regulations. The ALJ was, however, unpersuaded by the
IQ test, concluding Ms. McGee had “no medically determinable impairment as far as
any mental retardation is concerned.” Id. The ALJ proceeded no further with the
mental retardation analysis.
Next, the ALJ concluded Ms. McGee’s anxiety and depression did not meet the
presumptively disabling criteria found at Listings 12.04 and 12.06 of 20 C.F.R. Part
404, subpart P, appendix 1. At step 4, the ALJ found that, to the extent Ms. McGee
could be considered to have past relevant work, she retained the capacity to perform
it. Alternatively, the ALJ concluded at step 5, Ms. McGee had the capacity to perform
similar jobs.
On appeal, Ms. McGee challenges only the ALJ’s decision to reject her IQ test.
She claims her IQ test not only establishes medically determinable mental retardation,
as required at step 2, but also meets one of the criteria for presumptive disability
required at step 3. See Listing 12.05C of 20 C.F.R. Part 404, subpart P, appendix 1.
Ms. McGee argues the ALJ should have found her presumptively disabled under
Listing 12.05C, which addresses mild mental retardation.4
4
To meet listing 12.05C, Ms. McGee must show “(1) a valid verbal,
performance, or full scale IQ of 60 through 70; (2) an onset of the impairment before
age 22; and (3) a physical or other mental impairment posing an additional and
significant work-related limitation of function.” Maresh v. Barnhart, 438 F.3d 897, 899
(8th Cir. 2006).
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The issue, then, is whether there is substantial record evidence as a whole
supporting the ALJ’s decision to reject the IQ scores for invalidity. We find there is.
The WAIS-III is an acceptable means to test for mental retardation. See Bailey
v. Apfel, 230 F.3d 1063, 1065 (8th Cir. 2000) (referring to predecessor test, the WAIS-
R). There is no suggestion the test was improperly administered, and no othertest has
been offered in contradiction. Mr. Smith believed the IQ scores were valid and
accurate.
The Commissioner is not, however, required to accept a claimant’s IQ score.
See Miles v. Barnhart, 374 F.3d 694, 699 (8th Cir. 2004); Clark v. Apfel, 141 F.3d
1253, 1255 (8th Cir. 1998). Rather, the ALJ should examine the record to determine
whether the proffered IQ score is reliable - that is, consistent with the claimant’s daily
activities and behavior. Miles, 374 F.3d at 699. An ALJ may reject IQ scores if they
are inconsistent with the record. Johnson, 390 F.3d at 1071; Clark, 141 F.3d at 1255.
Here, the ALJ rejected Ms. McGee’s IQ scores as invalid.
We must consider the record as a whole, including evidence both for and against
the ALJ’s conclusion. The strongest evidence against the ALJ’s view is the IQ test
itself. The ALJ requested the examination and selected the psychologist who
administered it. The resulting scores clearly fall in the range contemplated by Listing
12.05C. The psychologist who administered the test supported its validity.
On the other hand, this IQ test stands alone in the record. It is the product of a
single examination by a non-treating psychologist in connection with a disability
benefits claim. Compare Clark, 141 F.3d at 1256. (“A one-time evaluation by a non-
treating psychologist is not entitled to controlling weight.”) It was administered when
Ms. McGee was 31 years old. While IQ is presumed stable over time, see Maresh, 438
F.3d at 900, we consider the fact that Ms. McGee was never previously suspected of
mental retardation to be “significant in gauging the reliability” of these particular IQ
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scores. Clark, 141 F.3d at 1256. (“Nothing in [claimant’s] extensive medical records
indicates that she was ever suspected of being mildly mentally retarded” prior to
examination.)
The IQ scores are inconsistent with Ms. McGee’s medical history. Ms. McGee
has been extensively examined by medical and mental health professionals over many
years. They have examined her in connection with recurrent depression, anxiety, and
panic attacks. Mr. Smith is the first, and the only, person suggesting any cognitive
difficulty at all. Significantly, neither Ms. McGee’s treating psychiatrist nor her
therapist, each of whom saw her periodically for more than a year prior to the IQ test,
perceived any mental retardation. Compare Clark, 141 F.3d at 1256.
The IQ scores are also inconsistent with Ms. McGee’s prior history and present
activities. Ms. McGee always took regular classes and completed the tenth grade in
school. There is no evidence showing she struggled academically. While she dropped
out of school after tenth grade, her departure was to have a baby, as opposed to any
suggestion of academic inability. Thereafter, she earned her GED. While she
indicated she had been fired from jobs due to her inability to accept criticism, we have
no evidence showing she ever lost a job for lack of cognitive ability. Compare Miles,
374 F.3d at 698 (claimant had not been terminated from a job for lack of mental
abilities). We also contrast Mr. Smith’s conclusion of limited reading ability with the
reports by both Ms. McGee and her husband that she regularly reads newspapers,
magazines, and the Bible. She stated she tries to read for “at least an hour a day.” At
the time of the hearing, Ms. McGee and her disabled husband were maintaining a home
and raising five children ranging in age from 14 to 2, which the ALJ found was
inconsistent with mental retardation.
Ms. McGee argues that her GED is not necessarily inconsistent with a finding
of mild mental retardation. See Appellant’s Br. at 28-29, citing Markle v. Barnhart,
324 F.3d 182, 189 (3d Cir. 2003) and Lewis v. Astrue, No. C06-6608 SI, 2008 WL
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191415 (N.D. Cal., Jan. 22, 2008) (unpublished). However, a claimant’s educational
achievement is one factor properly considered in determining whether IQ scores are
valid. See Miles, 374 F.3d at 695, 698 (claimant received B grades in regular classes
through the eleventh grade); Clark, 141 F.3d at 1254, 1255 (claimant had ninth grade
education). In essence, Ms. McGee is asking us to reweigh the evidence. This we may
not do. We cannot reverse the Commissioner’s decision merely because substantial
evidence supports a contrary outcome. Clark, 141 F.3d at 1255.
Finally, the ALJ found Ms. McGee’s demeanor at the hearings was inconsistent
with a finding of mental retardation. An ALJ’s personal observation of a claimant at
the hearings is an appropriate factor to consider in assessing the validity of IQ score.
Miles, 374 F.3d at 699; Clark, 141 F.3d at 1255.
Given the evidence, the ALJ found Ms. McGee’s low IQ scores were best
explained by poor motivation, despite Mr. Smith’s finding to the contrary. There is
substantial evidence in this record as a whole which supports the ALJ’s finding, and
we will not disturb it.
Absent a valid IQ score, Ms. McGee cannot show a medically determinable
cognitive impairment requiring further analysis. Nor can she show an impairment
which meets the Listing 12.05C criteria. See Johnson, 390 F.3d at 1070, citing Sullivan
v. Zebley, 493 U.S. 521, 530-31 (1990) (claimant must present medical findings equal
in severity to all the criteria of a listed impairment). Therefore, we find there is
substantial evidence in the record as a whole which supports the Commissioner’s
conclusion that Ms. McGee is not presumptively disabled.
For the foregoing reasons, the decision of the district court is affirmed.
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