Hoeber v. Colvin

Filing 16

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate judgment in accordance with this Memorandum and Order will be entered. Signed by District Judge Carol E. Jackson on 9/2/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GRACE HOEBER,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 4:15-CV-1031 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I. Procedural History
On January 28, 2013, plaintiff Grace Hoeber protectively filed an application
for disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., with an alleged
onset date of September 1, 2012.1 (Tr. 156-62, 181). After plaintiff’s application
was denied on initial consideration (Tr. 77-90), she requested a hearing from an
Administrative Law Judge (ALJ). (Tr. 102-03).
A hearing was held by video on February 27, 2014.

(Tr. 29-76). The ALJ

issued a decision denying plaintiff’s application on March 7, 2014. (Tr. 8-27). The
Appeals Council denied plaintiff’s request for review on May 5, 2015.

(Tr. 1-6).

Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents

1

Plaintiff had prior applications for benefits filed on May 23, 2012, with an alleged date of
onset of January, 19, 2009. The applications were denied on September 10, 2012. (Tr. 78,
180).

In a Disability Report dated February 14, 2013 (Tr. 184-92), plaintiff listed
her disabling conditions as scoliosis, carpal tunnel, chronic back problems, arthritis,
asthma, anxiety, chronic knee problems, depression, and nerve damage. She
reported that she stopped working on August 27, 2008, due to her conditions. She
attended special education classes throughout her school years. She had previously
worked in a customer service position in retail, as a housekeeper and laundry
attendant in a motel, and as a sandwich maker and cashier at a sandwich shop.
Plaintiff did not list any medications in her Disability Report.
In a Function Report dated March 10, 2013, (Tr. 205-12), plaintiff stated that
she lived in a hotel room with her boyfriend. In response to a question about her
daily activities, plaintiff stated that she cleaned her residence and tried to stay busy
with cleaning and laundry, although it took her a long time to complete chores. Her
arthritis made it difficult to use her hands or stand or walk for a long time. She was
not able to sleep during the night “at all” due to pain all over her body. She
prepared sandwiches to eat. She was able to go out alone and did so whenever she
was able to walk. She shopped for food and clothes. She did not drive but was able
to take a bus. She was able to pay bills and count change, but could not manage a
checkbook, money orders, or savings account. She used to enjoy fishing, cleaning,
cooking, music and shopping, but suggested she did not do so anymore due to
headaches and pain in her back, legs, sides, and hands. She spent time with others
at the store or church or on the telephone. Plaintiff had difficulties with lifting,
squatting, bending, standing, reaching, walking, sitting, seeing, understanding,
following instructions, using her hands, and getting along with others. She could
walk 5 to 10 minutes before needing to rest for 10 to 15 minutes. She could pay
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attention for 5 to 10 minutes and could not finish things she started. She also had a
lot of trouble with reading and spelling and sometimes had trouble following spoken
instructions. She did not always get along with authority figures but had never been
fired because of conflict with others. She could not handle changes in routine or
stress.
Randy Carter, plaintiff’s boyfriend, completed a third-party Function Report
that was generally consistent with plaintiff’s report. (Tr. 194-201). In addition, he
stated that plaintiff woke up at 6:00 in the morning and spent her day compulsively
cleaning. She collected dolls and liked to go to thrift stores. According to Mr. Carter,
plaintiff found it hard to understand “most things” and was almost always unable to
finish something she started. She used to be able to drive a car and previously had
better comprehension and the ability to read. It seemed to him that she was losing
her independence. She sometimes had trouble getting along with her mother and
was better able to get along with authority figures when she could work. She did
not like changes in routine and liked to plan her actions.
B. Testimony at Hearing
Plaintiff was 44 years old at the time of the hearing. (Tr. 33). She testified
that she and her boyfriend lived in a hotel room. (Tr. 51). Her Medicaid benefits
had been terminated about two months before the hearing and she was trying to
reach her caseworker to get them restored. (Tr. 56).
education services throughout her schooling.

She received special

She initially testified that she last

worked in 2008 as a sandwich maker and cashier at a fast-food restaurant. (Tr.
34). She held this job for three years before she was incarcerated for four years.
(Tr. 34-35). Her prior jobs included working as a cashier at a thrift store and
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working at a laundromat, where she did customers’ laundry and cleaned the store.
While incarcerated, she initially worked in the kitchen but experienced too much
pain in her legs and hands and was reassigned to operate a sewing machine. (Tr.
58). Later in the hearing, she testified that she had just begun working 10 to 15
hours a week as a cashier at a dollar store.2 (Tr. 59-60). She explained that she
loved dealing with customers and liked to work. (Tr. 56).
Plaintiff testified that chronic arthritis caused pain in her back, legs, knees,
hands and wrists. (Tr. 38). She rated her back pain at level 10 on a 10-point scale,
and stated she experienced such pain “all day” because she was “constantly moving
[and] doing something.” (Tr. 39). She also experienced a lot of pain in her legs and
knees when walking or standing. She could walk for 10 to 15 minutes before
needing to rest for 10 to 15 minutes. (Tr. 40, 43). She could stand for about 10
minutes before needing to sit for about 20 minutes. (Tr. 44). When sitting, she had
tingling and tightening throughout her legs and had trouble bending her knees. (Tr.
40). She experienced pain in her hands and wrists when lifting or sweeping. Prioer
carpal tunnel release surgery failed to resolve the pain. (Tr. 59). She had been
prescribed splints to wear on her wrists but had lost them when moving. (Tr. 42).
When she could not “stand it anymore,” she took medication and lay down for a
couple of hours. (Tr. 39). Despite the pain, her physical conditions were rarely so
bad that she “can’t do anything.” She tried to get out of the hotel every day to walk
and get some air. (Tr. 52). She took her medication with her to work at the dollar
store and used it if she experienced pain. She had received her manager’s approval

2

The ALJ determined that plaintiff’s work at the dollar store did not qualify as substantial
gainful activity. (Tr. 13)

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to not overfill customers’ shopping bags so that she could lift them more easily. (Tr.
61).
Plaintiff used two inhalers for her asthma, which was aggravated by allergies
and the fact that she smoked half a pack of cigarettes a day. (Tr. 44-45). She had
succeeded in reducing her daily smoking from two packs and wanted to quit
completely.
Plaintiff also had depression, for which she had been taking medication since
her release from prison. (Tr. 46). Her symptoms included wanting to avoid others
and “throwing fits” all the time. Medication helped but she still had 5 or 6 bad days
a month. When asked to describe her most recent “fit,” she stated that she had
come back to the hotel room the day before and found her boyfriend and others
rolling marijuana. She threw a fit because she didn’t want any drugs around her.
(Tr. 59). She also became angry if she was concerned by something affecting her
grandchildren. (Tr. 60). She had no difficulty getting along with her co-workers at
the store and asked for her manager’s assistance whenever a customer had a
complaint. (Tr. 62).
Plaintiff had difficulty concentrating and remembering to do things. (Tr. 48).
She could follow spoken instructions if she completed the task right away. When
following written instructions, she often had to ask for verbal clarification. (Tr. 49).
She had difficulty completing tasks because she became distracted. She stated that
she could watch television for about 10 or 15 minutes before she had to get up and
start moving around. (Tr. 49-50). She had been told that she had a learning
disability but did not know the specific areas of difficulty.

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Plaintiff testified that she slept about three or four hours a night. She napped
for two or three hours about two or three times a week. (Tr. 48). Plaintiff testified
that she got up about 5:00 in the morning and swept the rug, cleaned the
bathroom, and made the bed. These chores took her 45 minutes to an hour to
complete. (Tr. 51). Options for cooking were limited in the motel room and she
prepared microwave meals.
Vocational expert James Breen testified that plaintiff’s past work as a
sandwich maker, laundry worker attendant, and cashier, were all performed at the
light level. (Tr. 63-74). Mr. Breen was asked to testify about the employment
opportunities for a hypothetical person of plaintiff’s age, education, and work
experience. (Tr. 65). In addition, the ALJ asked him to assume that the hypothetical
individual could perform work in the light exertional range, with occasional postural
activities, and use both hands on a frequent basis for gross and fine manipulation.
In addition, the hypothetical individual should avoid concentrated exposure to
pulmonary irritants, and was limited to work that was unskilled, simple, routine,
and repetitive. Finally, the individual learned best by demonstration or with oral
instruction aided by demonstration. Mr. Breen testified that such an individual
would be able to perform all of plaintiff’s past relevant work. (Tr. 66). The
additional requirement to avoid teamwork tasks precluded plaintiff’s past job as a
sandwich maker, but other jobs were available in the local and national economy,
including mail clerk, hotel housekeeper, and cashier. (Tr. 67). Restricting the
individual to sedentary work eliminated all past relevant work, but other available
jobs included circuit board tester, importer clerk, and charge account clerk. No

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competitive work would be available if the individual also needed to nap two or
three hours a day, two or three times each work week. (Tr. 68).
C. Relevant Medical Records
The

Court

has

reviewed

all

the

medical

records

contained

in

the

administrative record. The parties do not dispute the ALJ’s determination that
plaintiff had the severe impairments of depression, asthma, obesity, degenerative
disc disease of the cervical and lumbar spine, history of bilateral carpal tunnel
syndrome, and right knee joint effusion and compartment. (Tr. 14). The sole issue
raised by plaintiff’s appeal is whether the ALJ erred in determining that plaintiff
functions in the borderline intelligence range and does not meet the requirements
of Listing 12.05C, governing intellectual disability, formerly labeled as “mental
retardation.” Accordingly, the Court’s recitation of the medical evidence is limited to
records relevant to plaintiff’s intellectual functioning.
A mental health evaluation was completed upon plaintiff’s intake to the
Missouri Department of Corrections. (Tr. 275). Plaintiff was determined to be within
normal limits for memory, concentration, intellect, directed thought, and reality
testing, and she was oriented as to person, place, date, and event. No deficits or
abnormalities were noted with respect to plaintiff’s speech, motor activity, mood
and affect, eye contact, cooperation, judgment or insight. She listed reading as a
method for coping with feelings of anxiety and anger. (Tr. 276). During her
incarceration she participated in various classes, and was described as attentive,
interactive, and participating well. It was noted that she made “every effort to
understand [the] material.” Although she had “limited educational abilities,” she
asked for help and was very motivated and interested. (Tr. 280).
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Sherman Sklar, M.E., completed a psychological evaluation of plaintiff on
August 21, 2012. (Tr. 417-23). At that time, plaintiff was living in a house with her
fiancé and his mother. Plaintiff was cooperative, responsive, open, spontaneous,
coherent, relevant, and logical. She spoke at a normal pace and provided good
detailed information regarding her life. Her chief complaints were that she had
sleep problems, felt depressed, and had a learning disability with reading and
comprehension deficits. Prescription medications for sleep and depression were not
helpful. Plaintiff stated that she became very upset and angry when thinking about
the circumstances that led to her incarceration and its collateral consequences. The
examiner described her as more angry than depressed. Her daily regimen included
doing some cooking, helping with housework, and going grocery shopping. She
liked to fish, go for walks, and hang out at the mall. Mr. Sklar noted no difficulties
with plaintiff’s social functioning.
Mr. Sklar noted that plaintiff was well-oriented to person, place, and time.
She could recall five of six digits. She could identify only the current president, and
did not know the identities of the current mayor of St. Louis and governor. She
knew her social security number, birth date and birth place, and was able to do
basic math problems without difficulty. Mr. Sklar found that plaintiff’s responses to
cognitive questions indicated deficits in her general information and abstract
reasoning abilities. Although plaintiff reported that she had problems with her
ability to focus, this was not observed during the evaluation. Indeed, the examiner
described plaintiff as “quite persistent” in her efforts on the intelligence test and
“trying hard to come up with reasonable solutions.” (Tr. 420).

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Mr. Sklar administered the Weschler Adult Intelligence Scale — IV (WAIS-IV),
and determined that plaintiff’s Full Scale IQ was 70, which placed her in the
borderline range of intelligence. Her scores on scales measuring perceptual
reasoning, working memory, and processing speed fell within the borderline to low
average ranges, while her score on the verbal comprehension index — 63 — was in
the mild mentally retarded range. Mr. Sklar opined that, “[t]hese index scores are
quite variable and indicative of a learning disability with her weakest area being in
processing verbal constructs and her greatest strengths in holding and manipulating
numbers in her head and executing tasks at a rapid pace.” (Tr. 421). He further
found that “[h]er main strength is in her ability to rapidly process[] information. A
learning weakness is in her abstract reasoning, her knowledge of words and her
fund of general information.” Id. Mr. Sklar diagnosed plaintiff on Axis I with
adjustment disorder, unspecified, acute; and on Axis II with borderline intellectual
functioning and learning disorder, not otherwise specified. Mr. Sklar assigned a
Global Assessment of Functioning score of 67.3
Mr. Sklar concluded that, “In summary, Ms. Hoeber has a history of learning
disability and has been the recipient of special education services throughout her
school career.” He further noted that she “served four years in jail and is quite
angry about this occurrence. She has a very hard time letting go of her anger and
the fact that she now [faces] significant obstacles in her efforts to resume a normal
life. She is taking some mood changing medication with little help.” (Tr. 421-22).
Mr. Sklar opined that plaintiff was capable of managing her own funds. (Tr. 422).
3

A GAF of 61-70 corresponds with “Some mild symptoms (e.g., depressed mood and mild
insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships.” Diagnostic & Statistical Manual of Mental Disorders
- Fourth Edition, Text Revision 34 (4th ed. 2000).

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On April 12, 2013, Kyle DeVore, Ph.D., completed a Psychiatric Review
Technique. (Tr. 81-83). Dr. DeVore concluded that plaintiff met the criteria for
organic mental disorders (borderline intellectual functioning) and affective disorders
(depression). He found that she had mild restrictions in the activities of daily living,
no restrictions in maintaining social functioning, and moderate difficulties in
maintaining

concentration,

persistence

or

pace.

She

had

no

episodes

of

decompensation. In support of his findings, Dr. DeVore noted that plaintiff
completed her Function Report without help; did not require reminders to take
medication; was able to clean, launder, and cook; went out on her own; shopped;
and spent time with others. Her learning disorders and borderline intellectual
functioning did not severely restrict her functioning.
III. The ALJ’s Decision
In the decision issued on March 7, 2014, the ALJ made the following findings
with respect to plaintiff’s application for disability insurance benefits:
1.

Plaintiff last met the insured status requirements of the Social Security
Act on March 31, 2013.

2.

Plaintiff did not engage in substantial gainful activity from her alleged
onset date of September 1, 2012, through her date last insured of
March 31, 2013.

3.

Through the date last insured, plaintiff had the following severe
impairments: depression, borderline intellectual functioning, asthma,
obesity, degenerative disc disorder of the cervical and lumbar spine,
history of bilateral carpal tunnel syndrome, and right knee joint
effusion and patellofemoral compartment osteoarthritis.

4.

Through the date last insured, plaintiff did not have an impairment or
combination of impairments that meet or medically equal the severity
of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1.

5.

Through the date last insured, plaintiff had the residual functional
capacity to perform the light work as defined in 20 C.F.R. §
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404.1567(b), limited to only occasional postural activities, and only
frequent use of her hands for gross and fine manipulation. In addition,
she was required to avoid concentrated exposure to pulmonary
irritants. She was also limited to unskilled work that is simple, routine,
and repetitive. Finally, she learned best by demonstration or oral
instruction with added demonstration if necessary.
6.

Through the date last insured, plaintiff was able to perform her past
relevant work as a housekeeper, sales clerk and sandwich maker. This
work did not require work-related activities precluded by plaintiff’s
residual functional capacity. In the alternative, considering plaintiff’s
residual functional capacity, age, education, and work experience,
plaintiff could also perform work as a mail clerk, housekeeper, and
cashier.

7.

Plaintiff was not under a disability within the meaning of the Social
Security Act from September 1, 2012, through March 31, 2013.

(Tr. 13-23).
IV. Legal Standards
The Court must affirm the Commissioner’s decision “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.”

Long v. Chater, 108

F.3d 185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance,
but enough so that a reasonable mind might find it adequate to support the
conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the
Court finds it possible to draw two inconsistent positions from the evidence and one
of those positions represents the Commissioner’s findings, the Court must affirm
the decision of the Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011) (quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
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mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009).

The

Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th
Cir. 2009).

“Each step in the disability determination entails a separate analysis

and legal standard.” Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not
currently engaged in substantial gainful activity, (2) she suffers from a severe
impairment, and (3) her disability meets or equals a listed impairment. Pate-Fires,
564 F.3d at 942. If the claimant does not suffer from a listed impairment or its
equivalent, the Commissioner’s analysis proceeds to steps four and five. Id.
APrior to step four, the ALJ must assess the claimant=s residual functioning
capacity (>RFC=), which is the most a claimant can do despite her limitations.@
Moore, 572 F.3d at 523 (citing 20 C.F.R. ' 404.1545(a)(1)). “RFC is an
administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and
others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).

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In determining a claimant’s RFC, the ALJ must evaluate the claimant’s
credibility.

Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). This evaluation requires that the
ALJ consider “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of the pain; (3) the precipitating and aggravating factors; (4) the
dosage,

effectiveness,

and

side

effects

of

medication;

(5)

any

functional

restrictions; (6) the claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints.”

Buckner v. Astrue, 646

F.3d 549, 558 (8th Cir. 2011) (quotation and citation omitted). “Although ‘an ALJ
may not discount a claimant’s allegations of disabling pain solely because the
objective medical evidence does not fully support them,’ the ALJ may find that
these allegations are not credible ‘if there are inconsistencies in the evidence as a
whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After
considering the seven factors, the ALJ must make express credibility determinations
and set forth the inconsistencies in the record which caused the ALJ to reject the
claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley
v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether a claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e).
The burden at step four remains with the claimant to prove her RFC and establish
that she cannot return to her past relevant work. Moore, 572 F.3d at 523; accord
Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart,
421 F.3d 745, 750 (8th Cir. 2005).
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If the ALJ holds at step four of the process that a claimant cannot return to
past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within
the national economy.

Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001).

See also 20 C.F.R. § 404.1520(f).
If the claimant is prevented by her impairment from doing any other work,
the ALJ will find the claimant to be disabled.
V. Discussion
Plaintiff argues that the ALJ improperly assessed whether she met the
requirements of Listing 12.05C.4 To meet the requirements of the Listing, a
claimant 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 imposing an additional and significant work-related limitation of
function. Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006).
The ALJ explained that:

4

Listing 12.05 states in relevant part:
Intellectual disability: Intellectual disability refers to 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.
The required level of severity for this disorder is met when the requirements of A, B,
C, or D are satisfied.
***
C. 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.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.

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the “paragraph C” criteria of Listing 12.05 were not met because the
claimant did not 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. In 2012,
testing determined a verbal IQ of 63 and full scale IQ of 70. However,
these are the only IQ scores in the record, and they are the result of a
recent examination. Moreover, the IQ test evaluator failed to provide
an explanation as to whether or not these test results appear valid.
Indeed, the claimant has previously been able to learn and perform
jobs above the level of substantial gainful activity, and there is no
indication of any injury or other condition that would have worsened
her intellectual functioning.
(Tr. 16).
Plaintiff argues that the ALJ improperly rejected her IQ scores, which led to a
failure to consider whether the onset of her intellectual impairment was prior to age
22. Plaintiff also argues that the ALJ’s finding that she does not have “a physical or
other mental impairment imposing an additional and significant work-related
limitation of function” is plainly incorrect in light of the ALJ’s finding at step 2 that
plaintiff has severe impairments. The Commissioner does not dispute that plaintiff
meets the third element of the Listing.5
“An ALJ may disregard a claimant’s IQ score when it is derived from a onetime examination by a non-treating psychologist, particularly if the score is
inconsistent with the claimant’s daily activities and behavior.” Muncy v. Apfel, 247
F.3d 728, 733 (8th Cir. 2001). “Indeed, test results of this sort should be examined
to assure consistency with daily activities and behavior.” Clark v. Apfel, 141 F.3d
1253, 1255 (8th Cir. 1998) (citation omitted). On review the Court must affirm the
ALJ if “the decision to disregard [plaintiff’s] scores as unreliable is supported by
substantial evidence on the record as a whole.” Id.
5

The Commissioner asserts that the ALJ was merely paraphrasing the Listing requirements
and did not make a finding that plaintiff did not have “a physical or other mental
impairment imposing an additional and significant work-related limitation of function.”

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The Court concludes that the ALJ’s decision to disregard plaintiff’s IQ scores
is supported by substantial evidence in the record. First, the examiner described
plaintiff’s IQ scores as “quite variable and indicative of a learning disability.”6 (Tr.
421) (emphasis added). And, he did not diagnose her with mental retardation, but
borderline intellectual functioning, which is defined as an IQ in the 71–84 range,
and thus outside Listing 12.05C’s range. See American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, 39–40, 684 (4th ed. 1994).
Furthermore, he assigned plaintiff a GAF of 67, which is indicative of only mild
symptoms. The ALJ also addressed plaintiff’s activities of daily living and social
functioning. Based on her abilities to manage her personal care, prepare simple
meals, go shopping, use public transportation, work part-time, and effectively cope
with argumentative customers, the ALJ found that plaintiff had only mild restrictions
in performing the activities of daily living and social functioning. (Tr. 15). Plaintiff
does not dispute these findings.
Plaintiff challenges the ALJ’s reliance on the fact that Mr. Sklar did not affirm
that the scores were valid, because he did not state that they were invalid. An
examiner’s silence with respect to the validity of IQ scores is not meaningless,
however. The regulations state that, “since the results of intelligence tests are only
part of the overall assessment, the narrative report that accompanies the test
results should comment on whether the IQ scores are considered valid and
consistent with the developmental history and the degree of functional limitation.”
20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.00(d)(6). Plaintiff also argues that
relying on Mr. Sklar’s diagnosis and GAF score to affirm the ALJ’s finding amounts
6

The ALJ addressed plaintiff’s learning disabilities by limiting her to simple, routine, and
repetitive unskilled work.

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to an impermissible post hoc rationalization because the ALJ herself did not cite
these as reasons for disregarding her IQ scores. See Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168-69 (1962) (“The courts may not accept appellate
counsel’s post hoc rationalizations for agency action; . . . an agency’s discretionary
order [may] be upheld, if at all, on the same basis articulated in the order by the
agency itself.”). Notwithstanding this general rule against post hoc rationalizations,
in the context of Social Security disability determinations, “[t]here is no error when
an ALJ fails to explain why an impairment does not equal one of the listed
impairments as long as the overall conclusion is supported by the record.”
Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011) (citation omitted); see also
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86
(1974) (“While we may not supply a reasoned basis for the agency’s action that the
agency itself has not given, . . . we will uphold a decision of less than ideal clarity if
the agency’s path may reasonably be discerned.”). Here, the ALJ’s conclusion is
amply supported by the record.
Because the Court concludes that the ALJ did not err in determining that
plaintiff’s IQ scores do not satisfy the first prong of Listing 12.05C, the Court
declines to address plaintiff’s arguments directed to the second prong.
VI. Conclusion
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed.
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A separate judgment in accordance with this Memorandum and Order will be
entered.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of September, 2016.

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