Paul Scott v. Nancy A. Berryhill

United States Court of Appeals
For the Eighth Circuit
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No. 16-1931
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Paul Scott
lllllllllllllllllllll Plaintiff - Appellant
v.
Nancy A. Berryhill,1 Acting Commissioner of Social Security
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: January 12, 2017
Filed: April 28, 2017
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Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.
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GRUENDER, Circuit Judge.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 23, 2017 and has been automatically substituted as a party pursuant to
Federal Rule of Appellate Procedure 43(c)(2).
Paul Scott appeals the decision of the district court2 affirming the
administrative law judge’s (“ALJ”) denial of his application for supplemental security
income under Title XVI of the Social Security Act. See 42 U.S.C. § 1381-1383f.
Because the decision of the ALJ is supported by substantial evidence on the record
as a whole, we affirm.
I. Background
Scott applied for supplemental security income in January 2013, alleging
disability due to a back condition, migraine headaches, hearing loss, and a left eye
injury. He alleged a disability onset date of October 15, 2012. Scott did not complete
the eighth grade, but he has held jobs as an animal caretaker farm worker (a semi-
skilled occupation), construction worker, and power plant cleaner. Scott injured his
back in a fall and eventually stopped working in 2012 due to back pain.
Scott’s claim was denied initially, upon reconsideration, and after a hearing
before an ALJ. The ALJ employed the five-step evaluation process prescribed by 20
C.F.R. § 416.920(a). At step one, the ALJ considers whether the claimant is
performing “substantial gainful activity,” and, if so, finds that the person is not
disabled. 20 C.F.R. § 416.920(a)(4)(i). The ALJ found that Scott had not engaged
in substantial gainful activity since the application date. At step two, the ALJ
considers whether the claimant has a “severe medically determinable physical or
mental impairment that meets the duration requirement.” Id. at § 416.920(a)(4)(ii).
Here, the ALJ found that Scott suffered two severe impairments: borderline
intellectual functioning and a back disorder. At step three, the ALJ considers whether
2
The Honorable Beth Deere, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
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the claimant’s severe impairment meets or equals an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Id. at § 416.920(a)(4)(iii). If so, then the ALJ must
find the claimant disabled. 20 C.F.R. § 404.1520(d). At this step, the ALJ found that
Scott’s impairments do not meet or equal one of the listed impairments. The ALJ
considered Listing 12.05, finding that Scott did not manifest deficits in adaptive
functioning prior to age twenty-two. The ALJ noted Scott’s history of attending
special education classes but explained that the consultative examiners did not
identify any other significant deficits. The ALJ also considered Listing 12.02, finding
that Scott has only mild restrictions in daily living activities, mild difficulties in social
functioning, and moderate difficulties in concentration, persistence, or pace. The ALJ
noted that Scott is able to cook, help feed his sister’s calves, do laundry, dust, drive
short distances, and care for personal hygiene. Although Scott reads and writes
poorly and cannot balance a checkbook, he communicates effectively, can perform
simple math, requires no reminders to complete chores, and is able to focus enough
to watch television three hours per day. Thus, the ALJ found Scott did not meet or
equal a listed impairment.
At step four, the ALJ determines the claimant’s residual functional capacity
(“RFC”) and considers whether the claimant can perform past relevant work. Id. at
§ 416.920(a)(4)(iv). The ALJ found that Scott has the residual functional capacity
to perform medium, unskilled work. However, the work is limited to jobs with few
variables, little independent judgment, and interpersonal contact incidental to the
work performed. Supervision should be simple, direct, concrete, and brief, and the
work cannot involve making change. Tasks should be able to be “learned and
performed by rote.” The ALJ then found that Scott cannot perform past relevant
work. At step five, the ALJ considers the claimant’s RFC, age, education, and work
experience to determine whether the claimant can adjust to other work. Id. at
§ 416.920(a)(4)(v). The vocational expert testified that an individual with Scott’s
RFC could work as a cleanup worker or poultry hanger, jobs existing in substantial
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numbers in the national economy. As a result, the ALJ found Scott not disabled and
denied his application for supplemental security income. The Appeals Council
denied review.
Scott challenged the ALJ’s decision in the Eastern District of Arkansas
pursuant to 42 U.S.C. § 405(g). The district court affirmed the ALJ’s decision, and
Scott now appeals. He challenges the ALJ’s determination that he did not meet
Listing 12.05C and contends that the ALJ failed to include his limitations in
concentration, persistence, or pace in the RFC hypothetical.
II. Discussion
We review the district court’s determination de novo, affirming the ALJ’s
decision if it is “supported by substantial evidence on the record as a whole.” Perkins
v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011) (quotation omitted). “Substantial
evidence is relevant evidence that a reasonable mind would accept as adequate to
support the Commissioner’s conclusion.” Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir. 2005) (quoting Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000) (quotation
marks omitted)). While we must consider evidence both supporting and detracting
from the ALJ’s decision, we will not reverse “simply because some evidence may
support the opposite conclusion.” Id. Rather, “[i]f, after reviewing the record, the
court finds it is possible to draw two inconsistent positions from the evidence and one
of those positions represents the ALJ’s findings, the court must affirm the ALJ’s
decision.” Id.
A. Listing 12.05C
First, substantial evidence supports the ALJ’s determination that Scott does not
meet or equal Listing 12.05C. Listing 12.05C requires: 1) “significantly subaverage
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general intellectual functioning with deficits in adaptive functioning initially
manifested . . . before age 22,” 2) “[a] valid verbal, performance, or full scale IQ of
60 through 70,” and 3) “a physical or other mental impairment imposing an additional
and significant work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.05C (2013). The ALJ found and the parties do not dispute that Scott’s
IQ of 63 falls within the prescribed range and that Scott has a qualifying physical
limitation. Thus, the only contested question is whether Scott has demonstrated
limitations in adaptive functioning that initially manifested before age twenty-two.
Substantial evidence supports the ALJ’s finding that Scott did not demonstrate
adaptive function limitations. While Scott did not complete high school and has a
history of attending special education classes, Scott’s work history demonstrates that
he was able to maintain unskilled and semi-skilled work for multiple years.3 Indeed,
he only ceased working due to his back condition, not mental issues. See Goff, 421
F.3d at 793 (finding relevant that the claimant left work because of reasons other than
the claimed disability).4 Although Scott reads poorly, cannot balance a checkbook,
and cannot manage finances or complete forms without assistance, he generally lives
independently, communicates well and thinks logically, has a driver’s license, can
drive and shop for groceries on a weekly basis, can perform simple math, and helps
3
The dissent argues that Scott’s work on a farm as an animal caretaker was
unskilled. However, the vocational expert testified that this job is semi-skilled
because it requires a worker to provide the animals with the correct amount of food
and to keep records accordingly. Neither Scott’s work history form nor the
consultative physician’s report support the conclusion that Scott’s farmhand work
was limited exclusively to manual labor as the dissent suggests.
4
Scott does not challenge the ALJ’s determination that he retains the residual
functional capacity to carry on medium work despite his back condition. While Scott
did claim his back condition as a disability, the back condition is not relevant to
whether he suffers from adaptive function limitations.
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feed his sister’s calves. He can cook meals, do laundry, dust, follow instructions, and
does not require reminders to complete tasks. Although Scott challenges the district
court’s analogy to Ash v. Colvin, 812 F.3d 686, 692 (8th Cir. 2016), Ash provides an
apt comparison. Ash had a history of attending special education classes, could not
pay bills or manage a checking account without assistance, and was diagnosed with
mild mental retardation, but she could drive, shop, “complet[e] basic household
chores and activities of daily living,” and had a “ten-year work history.”5 Id. at 691.
Thus, we found that substantial evidence supported the ALJ’s determination that Ash
did not demonstrate the adaptive function limitations necessary to meet Listing
12.05C. Id. In the same way, Scott’s limitations, when considered together with
Scott’s abilities, do not compel the conclusion that Scott’s condition meets or equals
Listing 12.05C. See also Cheatum v. Astrue, 388 F. App’x 574, 576-77 (8th Cir.
2010) (finding that an individual diagnosed with borderline intellectual functioning
who “had maintained employment in semi-skilled and unskilled positions for many
years” and could “perform activities of daily living and light housework, drive a car,
help prepare meals, and care for her father who was suffering from Alzheimer’s” did
not show deficits in adaptive functioning).
Contrary to Scott’s argument, Lott v. Colvin, 772 F.3d 546 (8th Cir. 2014), is
not applicable. In Lott, the ALJ failed to have an IQ test administered and failed to
“make specific findings as to whether the record evidence supports an onset of
intellectual and adaptive functioning disability before age twenty-two.” Id. at 550.
In this case, however, the ALJ did make specific findings regarding Scott’s adaptive
functioning, finding that he did not demonstrate adaptive functioning deficits that
manifested prior to age twenty-two. Accordingly, we must affirm as long as
substantial evidence supports those findings, even if substantial evidence also
5
Notably, although Ash did work as a cashier, she required a special
accommodation and could not calculate change herself. Ash, 812 F.3d at 691.
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supports the opposite conclusion. See Goff, 421 F.3d at 789. As explained above,
substantial evidence supports the ALJ’s conclusion that Scott did not demonstrate the
adaptive function limitations necessary to qualify under Listing 12.05C.
B. RFC Hypothetical
Second, the ALJ adequately accounted for Scott’s limitations in concentration,
persistence, or pace in the RFC hypothetical. In order to constitute substantial
evidence, a vocational expert’s testimony must be based on a hypothetical that
captures the “concrete consequences” of the claimant’s deficiencies. Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006) (quotation omitted); Porch v. Chater,
115 F.3d 567, 572 (8th Cir. 1997). Indeed, “the hypothetical question need not frame
the claimant’s impairments in the specific diagnostic terms used in medical reports.”
Lacroix, 465 F.3d at 889. A hypothetical question that omits the effects of
concentration, persistence, or pace deficiencies that the ALJ has found is not
sufficient. Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996) (finding a limitation
to simple work insufficient to describe the effects of deficiencies in the ability to
maintain regular attendance, be punctual, maintain attention and concentration, and
complete a normal work week). That being said, a sufficient hypothetical need not
contain much more than the hypothetical at issue in Newton. See Brachtel v. Apfel,
132 F.3d 417, 421 (8th Cir. 1997) (finding sufficient a hypothetical that included
“scantly more than what was included in the Newton hypothetical”).
The RFC hypothetical provided for medium, unskilled work involving
“personal contact that is incidental to the work performed,” requiring “little
independent judgment . . . [and] simple, direct, and . . . very brief” supervision. The
complexity of tasks was limited to “tasks [that] can be learned and performed by
rote.” This hypothetical adequately captured the concrete consequences of Scott’s
deficiencies. In describing his findings of Scott’s difficulties with respect to
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concentration, persistence, or pace, the ALJ noted Scott’s reading, writing, and math
difficulties, as well as his history of special education and failure to finish high
school. Although the ALJ noted that Scott “described a reduced attention span,” he
“retains the focus necessary to watch three hours of television per day” and does not
require reminders. Indeed, the ALJ noted that Scott demonstrated good concentration
and persistence during consultative examinations, but that consultative examiners
noted a slow pace. As a result, the ALJ concluded Scott could not perform complex
tasks and accordingly crafted the RFC to limit the complexity of tasks and the
duration and complexity of supervision (in addition to interpersonal and math-related
limitations). Given the lack of severity the ALJ found in Scott’s concentration,
persistence, or pace deficiencies, limiting the complexity of tasks to those performed
by rote and requiring that instructions be brief, simple, direct, and concrete
sufficiently captured the concrete consequences of Scott’s deficiencies, even if the
hypothetical did not lay out the exact deficiencies with medical precision. See
Lacroix, 465 F.3d at 889. Thus, the vocational expert’s testimony constitutes
substantial evidence supporting the ALJ’s finding at step five.
III. Conclusion
Accordingly, substantial evidence supports the ALJ’s findings, and we affirm
the order of the district court.
KELLY, Circuit Judge, dissenting.
I respectfully dissent from the court’s opinion because I believe the ALJ’s
determination that Scott did not demonstrate adaptive functioning deficits manifesting
before age 22 was not supported by substantial evidence. In reaching its conclusion,
the ALJ relied on the fact that the consultative examiners diagnosed Scott with
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“borderline intellectual functioning” instead of “mental retardation.”6 The DSM-IV’s
definition of mental retardation requires adaptive functioning deficits in at least two
specified skill areas. Because the examiners believed Scott had deficits in just one
of the specified areas—functional academic skills—they concluded Scott did not have
mental retardation. However, a claimant need not meet the DSM-IV definition of
mental retardation to meet Listing 12.05C. Maresh v. Barnhart, 438 F.3d 897, 899
(8th Cir. 2006). Rather, to meet Listing 12.05C, a claimant need simply demonstrate
“deficits in adaptive functioning” that manifested before age 22. Id. (quoting 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C).
Here, Scott presented ample evidence of deficits in adaptive functioning that
manifested before age 22. To begin with, Scott presented evidence that he has a full-
scale IQ of 63. Although Scott was 46 at the time of the evaluation, “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.” Muncy v. Apfel, 247 F.3d 728, 734 (8th
Cir. 2001). Additionally, Scott presented evidence that he attended special education
classes, repeated the sixth and seventh grades, quit school after the eighth grade,
cannot manage his finances or make change, has worked only in unskilled menial-
labor jobs, has difficulty reading and writing, and required assistance to complete his
disability forms. These circumstances are similar to those in other cases where we
concluded the claimant demonstrated deficits in adaptive functioning that manifested
prior to age 22. See, e.g., Christner v. Astrue, 498 F.3d 790, 791, 793 (8th Cir. 2007)
(concluding that “contrary to the ALJ’s determination, there is some circumstantial
evidence to support the fact that [the claimant]’s deficiency manifested before age
twenty-two” where he had a full-scale IQ of 58, attended special education classes,
and quit school after the sixth grade); Maresh, 438 F.3d at 900 (concluding that “the
6
For clarity, I use the term “mental retardation,” used in DSM-IV, rather than
the updated term “intellectual disability,” used in DSM-5.
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ALJ should have found that [the claimant]’s impairment manifested” before age 22
where the claimant had a verbal IQ of 70 at age 37, attended special education
classes, quit school after the ninth grade, and, as a child, often fought with other
children).
A history of working in semi-skilled or skilled positions requiring average
intellectual functioning, such as cashier or certified nursing assistant, can be evidence
that a claimant does not have deficits in adaptive functioning. See Ash, 812 F.3d at
691–93; Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007). But here, there is no
evidence Scott has ever performed semi-skilled or skilled work. The vocational
expert testified that Scott’s work as a farmhand would be semi-skilled if it involved
duties like recording inventory, but that it would be unskilled if it involved “only the
labor part” of the job. Nothing in the record suggests that Scott’s farmhand duties
included any tasks similar to recording inventory; on the contrary, Scott indicated in
his work history report that he did not “[d]o any writing, complete reports or perform
duties like this” as a farmhand, and he reported to the consultative examiners that he
performed only “manual labor” as a farmhand. Furthermore, neither Scott’s history
of simple, unskilled labor, nor his ability to perform “rudimentary activities of daily
living”—such as driving short distances, preparing simple meals, washing laundry,
dusting, and watching television—is inconsistent with having deficits in adaptive
functioning. See Lott, 772 F.3d at 551. As we have previously explained, Listing
12.05C applies to individuals whose subaverage intellectual functioning would not
itself preclude employment in the absence of an additional physical or mental
impairment. Id. For example, in Lott, we concluded that the claimant was not
necessarily unable to meet Listing 12.05C solely because he had worked as a
construction worker and short-order cook and could carry out basic daily activities.
Id. at 548, 551–52; see also Reed v. Colvin, 779 F.3d 725, 726 (8th Cir. 2015) (per
curiam) (explaining that the claimant’s daily activities and six-year history of
unskilled work did not undermine her allegations of an intellectual disability meeting
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Listing 12.05C); Bailey v. Apfel, 230 F.3d 1063, 1065 (8th Cir. 2000) (determining
that the claimant’s daily activities of watching television and visiting friends “d[id]
not call into question the validity of [his] IQ results,” which met Listing 12.05C). For
the reasons above, I would hold that the ALJ’s decision to deny benefits under Listing
12.05C was not supported by substantial evidence.
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