PHILLIPS v. ASTRUE

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS THAT PLAINTIFFS OBJECTION (DOC. 17) IS OVERRULED. THE REPORT AND RECOMMENDATION (DOC. 16) IS APPROVED AND ADOPTED. PLAINTIFFFS REQUEST FOR REVIEW (DOC. 11) IS DENIED. THE DECISION OF THE COMMISSIONER WHICH DE NIED DISABILITY INSURANCE BENEFITS AND SUPPLEMENTAL SECURITY INCOME TO PLAINTIFF IS AFFIRMED. THE CLERK OF COURT SHALL CLOSE THIS CASE FOR STATISTICAL PURPOSES.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 12/29/14. 12/30/14 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANGELO PHILLIPS,
Plaintiff,
v.
CAROLYN COLVIN
Acting Commissioner of Social Security,
Defendant.

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Civ. No. 13-1031

ORDER
Plaintiff Angelo Phillips seeks review of the Social Security Commissioner’s denial of
his claim for disability insurance benefits and supplemental security income. (Doc. No. 3.) I
referred the matter to a Magistrate Judge for a Report and Recommendation. (Doc. No. 11.)
Judge Rice recommended denying review and Plaintiff has objected. (Doc. Nos. 16, 17.) For
the following reasons, I will overrule Plaintiff’s objection and adopt the Report and
Recommendation.
I.

BACKGROUND
The Social Security Administration denied Plaintiff’s claims for disability insurance

benefits and supplemental security income in March 2010.

(Doc. No. 7-2 at 23.) While

Plaintiff’s ALJ hearing was pending, Plaintiff requested a consultative examination that included
IQ testing. The ALJ denied the request for the consultative examination and, after a hearing,
denied Plaintiff’s claims on July 15, 2011. (Id.)
Plaintiff filed a Request for Review, arguing that the ALJ erred by refusing his request
for a consultative examination and that testing would show that he qualifies for benefits under
Listing 12.05 based on mental retardation. (Doc. No. 11.) Judge Rice recommended denying the
request for review, finding that the ALJ’s decision was supported by substantial evidence

“because there was no information in the record that suggested an IQ test was necessary.” (Doc.
No. 16 at 1.)

Plaintiff objects, again arguing that the ALJ’s refusal to order IQ testing was

unsupported and should reversed. (Doc. No. 17.)
II.

LEGAL STANDARD
The ALJ’s decision must be upheld if it is supported by “substantial evidence.” Monsour

Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). “Substantial evidence ‘does not mean
a large or considerable amount of evidence, but rather such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 564–65 (1988)).
I must review de novo each issue addressed by the Magistrate Judge to which Plaintiff
has raised a timely and specific objection. 28 U.S.C. § 636(b)(1) (2002); see also Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). I may “accept, reject, or modify, in whole or in part,
the [Magistrate Judge’s] findings and recommendations.” 28 U.S.C. § 636(b)(1). It is also
within my discretion to rely on the Magistrate Judge’s proposed findings and recommendations.
See United States v. Raddatz, 447 U.S. 667, 676 (1980).
III.

DISCUSSION
I agree with Judge Rice that substantial evidence supported the ALJ’s refusal to order a

consultative examination with IQ testing. (Doc. No. 16 at 13.) The ALJ provided the following
explanation for denying testing:
[C]laimant has admitted to continual alcohol abuse (e.g., Testimony).
Furthermore, school records in evidence from Coatesville High School indicate
that the claimant had a verbal IQ of 86, non-verbal IQ of 86, and IQ of 85
(Exhibit 15F, p. 9). The evidence reveals that the claimant has some difficulty
with counting and mathematics, but that his intelligence is in the low average to
average range, with no evidence to suggest that the claimant suffers from mental
retardation (e.g., Exhibit 9F). Therefore, I denied the claimant’s request for an IQ
Test.
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(Doc. No. 7-2 at 23.)
Plaintiff argues that the ALJ ignored scores from the Short Form Test of Academic
Aptitude from May 1972, February 1973, and February 1980 that showed IQ scores in the 60s
and supported Plaintiff’s claim that he suffers from mental retardation. (Doc. No. 17 at 4.) As
Judge Rice explained, however, Plaintiff’s SFTAA scores did not reveal conflicting evidence
regarding Plaintiff’s intelligence that required further testing. (Doc. No. 16 at 13); see Maniaci
v. Apfel, 27 F. Supp. 2d 554, 559 (E.D. Pa. 1988) (further development of factual record
required only if other evidence “fairly raised” the question of whether a particular ailment met
the listing). The disability listing for mental retardation is based on the Wechsler series testfor
measuring IQ—not the SFTAA—and includes the caution that “identical IQ scores obtained
from different tests do not always reflect a similar degree of intellectual functioning.” 20 C.F.R.
Pt. 404, Subpt. P, App. 1, Listing 12.00(6)(c). In denying the request for testing, the ALJ noted
that Plaintiff’s Wechsler series test showed an IQ of 85, which is insufficient to qualify for
benefits. (Doc. No. 7-2 at 23.) Accordingly, I agree with Judge Rice that the ALJ did not ignore
relevant evidence because the SFTAA scores did not fairly raise Plaintiff’s entitlement to
benefits. Moreover, Plaintiff does not challenge the test results the ALJ relied upon in finding
that Plaintiff has “low average to average intelligence.” (Doc. No. 7-2 at 23.)
AND NOW, this 29th day of December 2014, upon consideration of Plaintiff’s Request
for Review, the Commissioner’s Response, the Report and Recommendation of the Magistrate
Judge, Plaintiff’s Objection to the Report and Recommendation, it is hereby ORDERED as
follows:
1. Plaintiff’s Objection (Doc. No. 17) is OVERRULED;
2. The Report and Recommendation (Doc. No. 16) is APPROVED and ADOPTED;
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3. Plaintiff’s Request for Review (Doc. No. 11) is DENIED;
4. The decision of the Commissioner which denied disability insurance benefits and
supplemental security income to Plaintiff is AFFIRMED; and
5. The Clerk of Court shall CLOSE this case for statistical purposes.

AND IT IS SO ORDERED.

/s/ Paul S. Diamond
_________________________
Paul S. Diamond, J.

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