Alan W. Simmons v. Jo Anne B. Barnhart

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1012
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Alan W. Simmons, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Western
Jo Anne B. Barnhart, * District of Missouri
Commissioner of *
Social Security, * [UNPUBLISHED]
*
Appellee. *
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Submitted: September 17, 2004
Filed: October 14, 2004
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Before MURPHY, MCMILLIAN, and BENTON, Circuit Judges.
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PER CURIAM.
Alan W. Simmons appeals, seeking Supplemental Security Income under Title
XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. The Administrative Law
Judge initially decided Simmons was disabled under the Listing of Impairments in 20
C.F.R. pt. 404, subpt. P, app. 1, § 12.05. The Social Security Administration's
Division of Disability Quality Operations concluded that insufficient evidence
supported the ALJ's decision. On its own motion, the Appeals Council remanded
Simmons' case.
At the second hearing, the ALJ held Simmons did not have a "disability" as
defined in the Act. The Appeals Council denied review. Thus, the ALJ's decision
stands as the final decision of the Commissioner of the Social Security
Administration. The district court1 affirmed the Commissioner. Jurisdiction being
proper under 28 U.S.C. § 1291, this Court now affirms.
This Court must affirm the ALJ's determination of disability if it is supported
by substantial evidence on the record as a whole. Jones v. Barnhart, 335 F.3d 697,
698 (8th Cir. 2003) (citing 42 U.S.C. § 405(g)). Substantial evidence is evidence
sufficient for a reasonable person to find adequate to support the ALJ's conclusions.
Id.Simmons argues that the ALJ erred in concluding he did not meet the
requirements for mental retardation under § 12.05. To satisfy § 12.05, Simmons
must show a "significantly subaverage" intelligence that initially manifested before
age 22. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05, implemented in 20 C.F.R.
404.1520(d) (2004).
In primary and secondary school, Simmons took four IQ tests, scoring from 93
to 116. He did not receive special education or similar services, and was never
classified as mentally retarded. Simmons attended regular classes until dropping out
of school in the 10th grade.
At age 38, Simmons sustained a closed head injury during an assault. Five
years later, he was diagnosed as blind in one eye and having a full-scale IQ of 67,
which the ALJ found valid. Because Simmons has a full-scale IQ of 67 and a
physical impairment, he contends this Court must assume that his mental retardation
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
District of Missouri.
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manifested before age 22. He cites this Court's footnote in Sird v. Chater, 105 F.3d
401, 403 n.4 (8th Cir. 1997), referencing Luckey v. Department of Health & Human
Services, 890 F.2d 666 (4th Cir. 1989). Luckey stated, "in the absence of any
evidence of a change in a claimant's intelligence functioning, it must be assumed that
the claimant's IQ [has] remained relatively constant." 890 F.2d at 668. The Fourth
Circuit held that Luckey's full-scale IQ of 68 was a lifelong condition because there
was no evidence of a decline in his intelligence. Id. Luckey did not take an IQ test
before age 22 and could barely read or write. Id. Here, to the contrary, there is
evidence of a change in Simmons' intellectual functioning. Before age 22, Simmons'
IQ scores were average. Treating physicians reported Simmons' IQ likely
deteriorated as a result of his head injury after age 22. Simmons himself testified his
headaches and memory loss were attributable to the head injury.
"Mental retardation" in § 12.05 refers to "significantly subaverage" intelligence
manifesting itself during the "developmental" period, i.e., before age 22. "The
threshold requirement for § 12.05 is mental retardation that has manifested itself
before age 22." Goose v. Apfel, 238 F.3d 981, 984 (8th Cir. 2001). Simmons is not
disabled within § 12.05 because there is no evidence indicating the onset of
"significantly subaverage" intelligence before age 22. Simmons objects to the
reliability of the school IQ scores, but produces no evidence discrediting the scores.
Although Simmons did have intermittent academic difficulty and dropped out of
school in the 10th grade, these do not demonstrate or support the onset of an
impairment before age 22.
Substantial evidence in the record supports the ALJ's decision. The judgment
of the district court is affirmed.
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