United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1124
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Scott Johnson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Michael J. Astrue, Social Security *
Commissioner, * [PUBLISHED]
*
Appellee. *
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Submitted: September 22, 2010
Filed: December 6, 2010
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Before LOKEN, HANSEN, and BENTON, Circuit Judges.
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HANSEN, Circuit Judge.
Scott Johnson appeals the district court's1 affirmance of the Social Security
Commissioner's denial of his claim for Supplemental Security Income (SSI). After
careful review, we affirm.
1
The Honorable H. David Young, 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).
I.
Scott Johnson is a 34-year-old male who suffers from anxiety and obsessive
compulsive disorder and has borderline intellectual functioning. He graduated 49th
from a high school graduating class of 140 students and attended a few college classes
before dropping out. Johnson was diagnosed in October 1994 at age 18 with
obsessive compulsive disorder, dysthmia, possible development disorders, and
immature personality disorder. At age 19, a psychological examiner observed
diagnostic impressions of an anxiety disorder and attention deficit hyperactivity
disorder, and he reported a social and occupational functioning assessment score of
50, reflecting serious impairments in social, occupational, and school functioning.
After suffering from auditory and visual hallucinations, Johnson was hospitalized at
Charter Hospital in 1996. He continued to receive services from Charter Behavioral
Health System through 1998. Johnson had nine sessions with psychologist Dr. Travis
Tunnell, Ph.D., between May 1997 and December 1997. There are no medical records
from those visits in the administrative record, but Dr. Tunnell wrote an undated letter
(stamped "received" for "Disability Determination" on March 24, 2006), stating that
he had seen Johnson for obsessive compulsive thoughts and behaviors with associated
anxiety, and that if those diagnoses continued, he "suspect[ed]" Johnson would have
difficulty performing in a work setting.
The record does not reflect medical records from 1998 through 2004,2 when he
began receiving treatment from Stuttgart Regional Clinic Network. Johnson was at
that time diagnosed with obsessive compulsive disorder and anxiety, and he was
placed on Zyprexa and Luvoxamine, which helped control his anxiety. Johnson
received treatment for obsessive compulsive disorder from the Rice-Lewis Clinic from
November 2004 through February 2006, and medical records indicated he was doing
2
Johnson was a patient at Arkansas Rehabilitative Services at some point, but
those records were not available.
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well with medication. Johnson was treated at the Arkansas Psychiatric Clinic from
October 2006 through May 2007 for generalized anxiety disorder, obsessive
compulsive disorder, and depressive disorder.
At the request of a state agency, Johnson saw Dr. Barry S. McDonald, Ph.D.,
for a mental status examination on April 20, 2006. Dr. McDonald diagnosed Johnson
with agoraphobia without panic, obsessive compulsive disorder, dyssomnia NOS,
possible ETOH abuse, possible PDD NOS, and personality disorder NOS with
obsessive-compulsive and passive-dependent traits predominating. Dr. McDonald
estimated Johnson's IQ at 80 or above but did not perform IQ testing, noting that he
missed the request for IQ testing in his notes. He stated however, that he would work
the IQ testing in if it was warranted.
Johnson has a very supportive family, and he resides with his mother. The only
job he has ever held is working in his father's law office to run errands and clean the
office on a very limited basis, working two days a week for a few hours. Johnson's
father testified that Johnson is not reliable, is notoriously late for work, and is easily
distracted away from a task. His mother testified that Johnson's anxiety often keeps
him from sleeping at night and that he has a hard time functioning in the mornings.
According to his mother, the combination of Johnson's obsessive compulsive disorder
and his anxiety make it difficult for him to function on his own. She makes up errands
for him to run to keep him busy. Johnson drives, hunts and fishes with his father,
plays golf, and follows Razorback sports.
Johnson filed an application for SSI on February 22, 2006. After his claim was
denied by the Social Security Administration (SSA), an administrative law judge
(ALJ) conducted an evidentiary hearing on November 1, 2007. The ALJ concluded
that Johnson had a combination of impairments including an anxiety related disorder,
personality disorder, attention deficit hyperactivity disorder, and borderline
intellectual functioning that caused significant limitations in Johnson's ability to
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perform basic work activities. The ALJ concluded that none of the impairments,
individually or collectively, met a listed impairment and that Johnson had the residual
functional capacity to perform simple unskilled and low semi-skilled work with
concrete instructions and superficial contact with others. A vocational expert (VE)
testified that with Johnson's limitations, he could perform jobs such as a material
handler or a hand packer. The ALJ concluded that Johnson had not been under a
disability as defined in the Social Security Act since the claimed on-set date of
February 22, 2006, and denied his appeal. The Appeals Council denied Johnson's
request for review, making the ALJ's decision the final decision of the Commissioner.
The district court reviewed the entire record and determined that substantial evidence
supported the ALJ's decision. Johnson now appeals the district court's decision.
II.
We review the district court's decision de novo, applying the same standard
applied by the district court. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010).
We will uphold the Commissioner's decision as long as "it is supported by substantial
evidence on the record as a whole," which is less than a preponderance, but sufficient
for reasonable minds to find it adequate to support the decision. Id. (internal marks
omitted). Our job is not to reweigh the evidence, but to ensure that the
Commissioner's decision is supported by substantial evidence in the record. See
Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009). We therefore must affirm the
denial of benefits even if the evidence supports inconsistent positions, as long as the
evidence supports the Commissioner's position. Id.
In assessing Johnson's application, the ALJ applied the familiar five-step
evaluation specified in the social security regulations. See 20 C.F.R.
§ 416.920(a)(4)(i)-(v). The ALJ concluded that Johnson had not engaged in any
substantial gainful activity (step one), 20 C.F.R. § 416.920(b), had a severe
combination of impairments, including an anxiety related disorder, personality
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disorder, attention deficit hyperactivity disorder, and borderline intellectual
functioning (step two), § 416.920(c), but that the impairments did not meet or equal
any of the listed impairments (step three), § 416.920(d). The ALJ skipped step four
since Johnson did not have any past relevant work. At step five, the ALJ determined
that Johnson had the residual functional capacity to perform simple unskilled and low
semi-skilled work with concrete instructions and superficial contact with others. The
ALJ relied on the testimony of a VE that Johnson could perform work in the economy.
Johnson takes issue with the ALJ's conclusion at step three that his mental
impairment did not meet Listing 12.05 for mental retardation. See 20 C.F.R. Part 404,
Subpart P, App. 1, § 12.05. The mental retardation listing "refers to significantly
subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period." Id. An individual meets this
listing if, inter alia, he has "[a] valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment imposing an additional and
significant work-related limitation of function." Id. § 12.05C. The ALJ rejected this
listing because the examining doctor estimated Johnson's IQ at 80 or above, exceeding
the listing requirements. Johnson counters with a performance IQ score of 69 that he
received when he was 16 years old. The same test revealed a full scale IQ of 78 and
a verbal IQ of 92. Johnson argues that the discrepancies in the IQ scores, coupled
with the examining doctor's notation that Johnson's adaptive functioning was
significantly limited in two areas, should have led the ALJ to recontact the examining
doctor to perform a full IQ test instead of merely estimating it.
Johnson does not claim that the record demonstrates that he met Listing 12.05C;
rather, he argues that the ALJ committed reversible error in failing to recontact Dr.
McDonald and order that he administer an IQ test. "[S]ocial security hearings are
non-adversarial," and an ALJ has a duty to fully develop the record, even when the
claimant is represented by an attorney. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir.
2004). An ALJ should recontact a treating or consulting physician if a critical issue
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is undeveloped. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005). However,
"[t]he ALJ is required to order medical examinations and tests only if the medical
records presented to him do not give sufficient medical evidence to determine whether
the claimant is disabled." Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994).
The only indication of a qualifying IQ score is the performance IQ score of 69
when Johnson was 16 years old. The examining doctor at that time concluded that
Johnson had below average to average intellectual ability and diagnosed him with a
learning disability. Johnson graduated in the top half of his high school class, taking
regular classes and receiving A's and B's. The low performance IQ score did not raise
concerns of mental retardation at the time. Further, as noted by the district court, Dr.
McDonald stated that he would perform an IQ test if it was warranted. After
evaluating Johnson and estimating his IQ to be 80 or greater, the highest of the three
ranges available on the evaluation form, it is apparent that Dr. McDonald did not
believe an IQ test was warranted. This conclusion is supported by the extent of
Johnson's daily activities, as well as his ability during Dr. McDonald's examination
to accurately perform mathematical problems, to recite the names of several past
United States presidents and current political figures, and discuss other current events.
The record of Johnson's IQ was sufficiently developed, and the ALJ did not commit
reversible error by failing to request that Dr. McDonald administer an IQ test.
Johnson also takes issue with the ALJ's determination at step five that he can
perform other work in the economy. Johnson argues that the ALJ's hypothetical
question posed to the VE did not accurately describe his impairments and their
resulting limitations. The ALJ described Johnson's residual functional capacity as
capable of performing medium work except that he "experiences anxiety disorder;
borderline intellectual functioning; attention deficit disorder; and personality disorder
which appears to be controlled with medication." (Add. at 5.) The ALJ also
concluded that Johnson "is able to perform simple unskilled and low-semi-skilled
work; understand, follow, and remember concrete instructions; and maintain
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superficial contact with supervisors, co-workers, and the general public to meet, greet,
make change, and give simple instructions and directions." (Id.) He then asked the
VE whether jobs existed for an individual with this residual functional capacity, as
well as Johnson's age, education, and work experience, to which the VE responded
that such an individual could work as a material handler or a hand packer, both jobs
widely available in the state and national economies.
Johnson argues that his actual limitations are much more significant than the
"meager" limitations identified by the ALJ in the hypothetical question. Our review
of the record reveals that the most recent medical evidence supports the ALJ's
limitations. Dr. McDonald noted that Johnson's agoraphobia and his obsessive
compulsive disorder were in a fair to partial, possible lasting remission with
appropriate medical management and strong social support. The ALJ accounted for
Johnson's limited intellectual functioning by requiring concrete instructions and
limiting the jobs to unskilled or low semi-skilled work. He accounted for Johnson's
personality disorders and anxiety by requiring only superficial contact with
supervisors, co-workers, and the general public. These limitations are supported by
the evidence in the record that Johnson was able to make deliveries for his father and
run errands for his mother. He interacted well with people he knew. The ALJ's
limitations are further supported by the evaluations of the effects of Johnson's
medications. Although he had problems with medications in the past, the most recent
evaluations showed that Johnson was doing "fairly well" and had "kind of stabilized"
after resuming use of Zyprexa (Admin. Tr. at 123, Feb. 13, 2006, Report of Dr.
Morgan), and that his "[a]nxiety [was] much better" after changing his dosage to 100
mg of Luvox, (id. at 185, May 1, 2007, Report of Dr. Gannoe). Although Johnson's
parents each testified that Johnson was unable to hold down a job, the medical
evidence in the record supports the ALJ's decision to not fully credit Johnson's parents'
accounts. In turn, the residual functional capacity finding employed in the
hypothetical to the VE was acceptable, and the ALJ's finding based on the VE's
response is supported by substantial evidence.
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III.
The district court's judgment is affirmed.
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