Phillips v. Social Security Administration
ORDER affirming the decision of the Commissioner and dismissing the 2 Complaint filed by Gary Phillips. Signed by Magistrate Judge Jerome T. Kearney on 9/7/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Michael J. Astrue, Commissioner,
Social Security Administration,
Cause No. 4: 11‐CV‐633‐JTK
ORDER AFFIRMING THE COMMISSIONER’S DECISION
In this case, plaintiff‐claimant Gary Phillips sought judicial review of defendant
Commissioner Michael J. Astrue’s denial of an application for supplemental security
income (SSI).1 Phillips asked the Court to reverse the Commissioner’s decision and
remand his case to the Social Security Administration (SSA) for the award of benefits.2
The undersigned has authority to resolve this case pursuant to the parties’ consent to
the jurisdiction of the magistrate judge.3 After considering the record, the arguments of
the parties, and the applicable law, this Court affirms the Commissioner’s decision.
Scope of judicial review. In reviewing a decision denying an application for SSI,
the reviewing court must determine whether substantial evidence supports the
Docket entry # 2 (complaint); SSA record at p. 19 (unfavorable decision).
Docket entry # 2, p. 2.
See 28 U.S.C. § 636(c); docket entry # 4.
Commissioner’s decision and whether the Commissioner made a legal error.4
Substantial evidence is more than a mere scintilla of evidence; it means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.5 In
determining whether substantial evidence supports the Commissioner’s decision, the
court must consider evidence that detracts from the Commissioner’s decision as well as
evidence that supports the decision, but the court may not reverse the Commissioner’s
decision simply because substantial evidence supports a contrary decision.6
The disputed issues in this appeal. The parties do not dispute that Phillips
exhausted his administrative remedies7 or that the Commissioner’s administrative law
See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Slusser v. Astrue, 557 F.3d 923,
925 (8th Cir. 2009) (stating that the court’s “review of the Commissioner’s denial of
benefits is limited to whether the decision is ‘supported by substantial evidence in the
record as a whole’”); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will uphold
the Commissioner’s decision to deny an applicant disability benefits if the decision is
not based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.”).
See Slusser, 557 F.3d at 925.
See Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d
1210, 1213 (8th Cir. 1993).
See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating that “the Social
Security Act precludes general federal subject matter jurisdiction until administrative
remedies have been exhausted” and explaining that the Commissioner’s appeal
procedure permits claimants to appeal only final decisions).
judge (ALJ) followed the required five‐step process for determining whether a SSI
claimant is disabled.8 Instead, the parties disagree about whether Phillips’s mental
impairment met a listed impairment.
The Commissioner’s decision. Phillips received SSI benefits as a child. Phillips
was abandoned by his biological parents and reared by his grandparents. When he
started kindergarten, school specialists evaluated Phillips for learning problems9 and
determined he needed special education services.10 Phillips’s grandmother then applied
for SSI on Phillips’s behalf11 and reported that “[t]hey say he is retarded and he is
Philips was later evaluated by Dr. Stephen R. Harris, a psychologist and
neurotherapist.13 Dr. Harris concluded that Phillips appeared “to be an individual in
the mild range of retardation who shows some fluctuations due to attentional and
See 20 C.F.R. § 416.920 (setting forth the five‐step sequential evaluation process
for determining whether a claimant is disabled and entitled to SSI).
SSA record at p. 281.
Id. at p. 301.
Id. at p. 131.
Id. at p. 235.
Id. at p. 296.
concentration difficulties.”14 Based on Dr. Harris’s evaluation, the Commissioner
approved the application for SSI.15
Phillips received SSI until February 1, 2008.16 Prior to the cessation of benefits,
the Commissioner notified Phillips that he was no longer eligible for child benefits.17
Because Phillips was 18 years old, the adult eligibility rules applied. Phillips sought SSI
benefits under the adult rules, but the Commissioner’s administrative law judge (ALJ)
determined that Phillips was not disabled.
The ALJ determined that despite having a severe impairment—borderline
intellectual functioning18—Phillips had the residual functional capacity (RFC) to work at
all exertional levels, except that Phillips’s ability to work was limited by functional
illiteracy and Phillips must work at jobs involving simple instructions and simple
tasks.19 Because a vocational expert identified jobs that a person with Phillips’s RFC
could do, the ALJ concluded that Phillips was no longer disabled under the Social
Id. at p. 297.
Id. at p. 62 (determining disability began on Jan. 1, 1995).
Id. at p. 57.
Id. at p. 99.
Id. at p. 21.
Id. at p. 24.
Security Act.20 The ALJ’s decision became the final decision of the Commissioner for the
purpose of judicial review pursuant to 42 U.S.C. § 405(g).
Substantial evidence supports the Commissioner’s decision. Most of the
documents in the record flowed from Phillips’s childhood disability determinations.
The documentation is relevant to the adult determination because Phillips maintains his
mental impairment meets or equals a listing for mental retardation. To meet a listing
for mental retardation, there must be evidence of “significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during
the developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.”21 The childhood‐disability records document the onset of
mental impairment before age 22.
Although the parties agree the onset of Phillips’s impairment began before age
22, they disagree about whether Phillips met a listed impairment for mental retardation
and whether the ALJ properly assessed Phillips’s credibility. Despite the disagreement,
the following substantial evidence supports the ALJ’s conclusion that Phillips was not
disabled: (1) a report of physical examination, (2) the results of psychological testing,
(3) evidence about attention deficit hyperactivity disorder (ADHD), and (4) vocational
Id. at p. 28.
20 C.F.R. pt. 404, subpt. P., app. 1., § 12.05.
The physical examination. Dr. James Simpson examined Phillips when he
was 17.22 Phillips reported having some blackouts when he got too hot, and having
problems with his back and knees,23 but Dr. Simpson determined Phillips had no
limitations in his ability to walk, stand, sit, lift, carry, handle, finger, see, hear or speak.24
Dr. Simpson’s report supports the ALJ’s determination that Phillips could work at all
exertional levels because Dr. Simpson found no exertional limitations.25
Psychological testing. At the conclusion of Phillips’s hearing, the ALJ sent
Phillips for psychological testing.26 Dr. Kenneth Hobby, a psychologist, evaluated
Phillips on June 10, 2010—when Phillips was 2027—and on October 13, 2010—when
Phillips was 21.28 After the first evaluation, Dr. Hobby reported that Phillips did not
SSA record at p. 562. Dr. Simpson’s report is the only evidence of Phillips’s
Id. at p. 562.
Id. at p. 566.
Phillips’s attorney stipulated to the absence of exertional limitation. Id. at p.
Id. at p. 613 (advising Phillips that he was sending Phillips for an evaluation and
some testing, and encouraging Phillips “to try your best on them”).
Id. at p. 572.
Id. at p. 582.
appear to function within or near the mentally retarded range.29
Dr. Hobby conducted intelligence testing during the second evaluation.
Dr. Hobby reported that Phillips’s scores were “typical of individuals who fall within
the low normal to borderline intellectual range, and who have attention deficit
problems.”30 Phillips’s lowest test score was “Working Memory, which fell in the upper
mild intellectually handicapped range.”31 Dr. Hobby opined that Phillips had “the
intellectual ability to learn some simple repetitive semi‐skilled work‐like tasks,” needed
close supervision until he learned a task because he could not read, and could probably
function well with minimum supervision after learning a task.32 Dr. Hobby diagnosed
Phillips with attention deficit/hyperactivity disorder, a learning disorder not otherwise
specified, and borderline intellectual functioning.33
Dr. Hobby’s reports support the ALJ’s decision because the ALJ determined that
Phillips was impaired by borderline intellectual functioning. The reports also support
the determination that Phillips’s mental impairment was severe because borderline
intellectual functioning limits available jobs. Borderline intellectual functioning, if
Id. at p. 578.
Id. at p. 590.
Id. at p. 590.
Id. at p. 590.
Id. at p. 591.
supported by the record, is a significant nonexertional impairment that must be
considered by a vocational expert.34 In addition, the reports support the ALJ’s
determination that Phillips can do jobs involving simple instructions and simple tasks
because that capacity is consistent with Dr. Hobby’s findings.
Evidence about ADHD. As a child, Phillips was diagnosed with ADHD. ADHD
is a developmental disorder that can continue through adolescence and adulthood. In
considering ADHD, the ALJ determined that ADHD was a non‐severe impairment.35
People with ADHD may have difficulty staying focused, paying attention,
difficulty controlling behavior, and hyperactivity.36 In seeking adult benefits, Phillips
reported no problems in these areas other than needing reminders to take his
medication.37 At that time, Phillips was taking a psychotropic drug for ADHD.38
A short time later, Dr. Don Birmingham, an agency psychologist, evaluated
Phillips and reported that Phillips’s ADHD appeared “to be well‐controlled via the
Byes v. Astrue, 687 F.3d 913, 916 (8th Cir. 2012); Lucy v. Chater, 113 F.3d 905, 908
(8th Cir. 1997).
SSA record at p. 23.
1 The Gale Encyclopedia of Med. 535‐38 (4th ed.).
SSA record at p. 152‐59.
Id. at p. 161.
medications.”39 Phillips obtained his medication through Medicaid and Families Inc.—a
counseling agency. The record suggests Phillips no longer received services from
Families Inc. after his child benefits ceased.
At the time of Dr. Hobby’s examination, Phillips had been untreated for ADHD
for over two years. Despite the lack of treatment, Dr Hobby observed no limitations in
the ability to attend to and sustain concentration on basic work‐like tasks, although
problems were apparent on formal tasks.40 Dr. Hobby opined that Phillips should be
able to persist on appropriate skill level work‐like tasks for at least part of an eight‐hour
day. Dr. Hobby reported that Phillips worked at a fairly normal and steady pace, a
pace appropriate for completing basic work‐like tasks.
This evidence supports the ALJ’s determination that ADHD was a non‐severe
impairment because it showed ADHD did not significantly limit Phillips’s mental ability
to do basic work activities,41 in contrast to Phillips’s intellectual functioning which
significantly limited his ability to work. The medical evidence indicated Phillips’s
childhood ADHD could be controlled by medication, but Dr. Hobby’s report showed
that Phillips had the ability to attend to and sustain simple work‐like tasks even without
Id. at p. 374.
Id. at p. 593.
20 C.F.R. § 416.921(a) (explaining that an impairment is not severe if it does not
significantly limit the ability to do basic work activities).
medication. The record indicates ADHD posed significant hurdles for Phillips as a
child, but had little impact Phillips as an adult.
Vocational expert testimony. The ALJ asked the vocational expert whether jobs
existed for a person who could work at all exertional levels, but was limited by
functional illiteracy and the need for jobs involving simple tasks and simple
instructions.42 The vocational expert testified that such jobs existed at all exertional
levels and provided examples of available jobs at the heavy and medium levels of
exertion.43 About the heavy‐level example, the vocational expert testified that 1,600 jobs
exited in Arkansas and 180,000 existed nationwide. About the medium‐level example,
the vocational expert testified that 3,700 jobs existed in Arkansas and 420,000 existed
nationwide.44 This testimony supports the ALJ’s determination that Phillips was not
disabled because it shows jobs existed in significant numbers that Phillips could
The foregoing evidence constituted more than a mere scintilla of evidence. A
reasonable mind would accept this evidence as adequate to support the conclusion that
Phillips was not disabled. For these reasons, the foregoing evidence constitutes
SSA record at pp. 611‐12.
Id. at p. 612.
substantial evidence. Despite substantial evidence, Phillips maintains the ALJ erred on
The Commissioner’s decision comports with applicable legal standards.
Whether Phillips met a listing for mental retardation. Phillips maintains his
mental impairment met or medically equaled listings for mental retardation—
specifically, listings 12.05B or 12.05C. To meet listing 12.05B, a claimant must have a
“valid verbal, performance, or full scale IQ of 59 or less.” To meet listing 12.05C, a
claimant must have 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.” Phillips argued that he met the listings because his
childhood scores fell within the required ranges. Phillips insisted the childhood scores
control because the Eighth Circuit has recognized that mental retardation does not
normally improve as a person ages and a person’s IQ presumably remains stable.45
Phillips maintains the ALJ erred by not accepting his childhood IQ scores.
The presumption of a stable IQ may be rebutted by “evidence of a change in a
claimant’s intellectual functioning.”46 In this case, the record included evidence of a
change in Phillips’s intellectual functioning. Dr. Stephen R. Harris reported that, at age
See Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001).
Muncy, 247 F.3d at 734.
5, Phillips scored: 55 on verbal, 63 on performance, and 56 on full scale.47 Joan Jeffery, a
school psychological examiner, reported that, at age 17, Phillips scored: 66 on verbal, 69
on performance, and 64 on full scale.48 Dr. Birmingham reported that, at age 18, Phillips
scored: 74 on verbal, 74 on performance, and 72 on full scale.49 Dr. Hobby reported that,
at age 21, Phillips scored: 71 on verbal, 81 on performance, and 74 on full scale. The
latter scores—Phillips’s adult scores—are higher than the childhood scores. The
difference in scores evidences a change in intellectual functioning.
The ALJ relied on the adult scores in determining whether Phillips met or
equaled a listing for mental retardation. Those scores fell outside the range for either
12.05B or 12.05C. Nothing in the record suggests the adult scores were invalid. Instead,
the record indicates the scores were valid because neither Dr. Birmingham nor
Dr. Hobby observed evidence of exaggeration or malingering.50 In the absence of
evidence undermining the validity of the adult scores, the ALJ properly relied on the
adult scores in determining that Phillips’s mental impairment did not meet a listing. To
the extent Phillips argued that the ALJ should have considered ADHD under listing
Id. at p. 297.
Id. at p. 571.
Id. at p. 376.
Id. at pp. 377 & 593.
12.05C as another mental impairment imposing an additional and significant
work‐related limitation of function, such consideration would make no difference
without a valid verbal, performance, or full scale IQ of 60 through 70. The ALJ did not
Phillips’s credibility. Phillips also challenges the ALJ’s assessment of the
credibility of his testimony, although he did not identify what aspects of his testimony
should have been credited as true. Ostensibly, he challenges testimony about why he
could not work. Phillips testified that he could not work because of problems with his
knees and back, stress, and anger.51 The ALJ determined the statements were not
credible to the extent they were inconsistent with the RFC determination.
“In assessing a claimant’s credibility, an ALJ must consider all of the evidence
related to the subjective complaints, the claimant’s daily activities, observations of third
parties, and the reports of treating and examining physicians.”52 The ALJ’s opinion
discussed these matters in detail and identified inconsistencies in Phillips’s statements
throughout the disability‐determination process. For example, when Phillips applied
for adult disability benefits, he reported no physical problems and getting along well
SSA record at pp. 605‐06, 608 & 610‐11.
McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (citing Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984)).
with authority figures.53 His testimony was different. A reviewing court “will defer to
an ALJ’s credibility finding as long as the ALJ explicitly discredits a claimant’s
testimony and gives a good reason for doing so.”54 The inconsistency in earlier reports
and testimony is a good reason. The ALJ did not err in assessing Phillips’s credibility.
Conclusion. Having determined that substantial evidence supports the
Commissioner’s denial of Phillips’s application, and the Commissioner made no legal
error, the court DENIES Phillips’s request for relief (docket entry # 2) and AFFIRMS the
It is so ordered this 7th day of September, 2012.
United States Magistrate Judge
SSA record at p. 152.
Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010) (citation omitted).
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