SCHMIDT v. COMMISSIONER OF SOCIAL SECURITY

Filing 18

ORDER denying 13 Plaintiff's Motion for Summary Judgment; granting 15 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 4/4/2013. (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

NATHAN L. SCHMIDT

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Plaintiff l

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vs.

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Civil Action No. 12-690

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COMMISSIONER OF SOCIAL SECURITY

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Defendant.

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AND NOW

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R D E R

this 4th day of Aprill 2013 1 upon consideration

of the parties' cross-motions for summary judgment

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the Court

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upon

review of the Commissioner of Social Security's final decision l denying
plaintiff's claim for supplemental security income benefits under
Subchapter XVI of the Social Security Act l 42 U.S.C. §1381 1 et seq'l
finds that the Commissioner's findings are supported by substantial
evidence and

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accordingly

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affirms.

See 42 U.S.C. §405(g) i Jesurum

v. Secretary of U.S. Department of Health & Human Services l 48 F.3d
1141 117 (3d Cir. 1995) i Williams v. Sullivan l 970 F.2d 1178 1 1182

(3d Cir. 1992)
Bowen

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cert. denied sub nom.

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507 U.S. 924 (1993) i Brown v.

845 F.2d 12111 1213 (3d Cir. 1988).

738 F. Supp. 942 1 944 (W.D. Pa. 1990)
evidence

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See also

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(if supported by substantial

the Commissioner's decision must be affirmed l as a federal

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court may neither reweigh the evidence, nor reverse, merely because

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it would have decided the claim differently)
642 F.2d 700, 705 (3d Cir. 1981)).1

Cotter v.

The Court finds that substantial evidence supports the ALJ's
determination of non-disability. Plaintiff advances two arguments, neither
of which have merit. First, Plaintiff argues that substantial evidence does
not support the ALJ/s finding that he did not meet or equal Listing 12.05C
for Mental Retardation because the ALJ improperly
ected his 2007
performance IQ score of 70 reported in Dr. Wheeler's examination. Second,
Plaintiff contends that the ALJ's Residual Functional Capacity {"RFC"}
finding is not supported by substantial evidence because it fails to account
for Plaintiff's intellectual deficits in reading writing, and math.
With respect to Plaintiff's first contention, it is well-established
that "an ALJ may reject [IQ] scores that are inconsistent with the record"
as long as he adequately explains his basis for doing so. Markle v. Barnhart
324 F.3d 182 / 187 {3d Cir. 2003}. AnALJ, however, is not permitted to reject
an IQ score based on his own speculative inferences and observations of the
claimant. Id. at 187. "In arriving at his determination of whether an IQ
score is val , i . e., the score is \ an accurate reflection of [a claimant I s]
intellectual capabilities,' the ALJ is to consider the entire record before
him." Miller v. Astrue, 2011 WL 2580516, at *6 n. 5 (E.D.Pa June 28 2011)
{quoting Lax v. Astrue, 489 F. 3d 1080 1087 (lOth Cir. 2007) (upholding the
ALJ/s rejection of IQ score as invalid because it was "not an accurate
reflection of [a claimant's] intellectual abilities."). "Test results may
be considered invalid where there is evidence that the claimant was
malingering or deliberately attempting to distort the results during the
test administration." Id. at *6 {citing Clay v. Barnhart 417 F.3d 922 930
(8th Cir. 2005) and Lax, 489 F.3d at 1087}. Indeed, \\[m]aking factual
determinations on the validity of IQ scores is within the province of an
ALJ." Lax 489 F.3d at 1086; see also popp v. Heckler, 779 F.2d 1497 1500
(11th Cir. 1986).
Here the Court finds that substantial evidence supports the ALJ's
decision to
ect plaintiff/s 2007 performance IQ score of 70 as invalid
because the record contains evidence that Plaintiff purposely was trying
to secure low scores during his IQ tests and thus deliberately attempting
to distort the results. The Court also finds that in rejecting Plaintiff s
IQ score, the ALJ relied on the actual medical evidence of record and not
his own speculative inferences or observations. (R. 493). Indeed, in
rejecting the score, the ALJ cited to Dr. Wheeler's 2007 IQ testing where
the psychologist expressed his belief that the scores were not an accurate
reflection of Plaintiff's intellectual capabilities because "he appeared
tired and appeared to invest little effort at times if the task did not appeal
to him while at other times invested more of himself if he enjoyed the task.
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(R. 365) (emphasis added) i Compare Markle, 324 F.3d at 187 (noting that
psychiatrist who administered IQ test concluded scores were valid because
"he did not qualify them") (emphasis added). Contrary to Plaintiff's
contention, Dr. Wheeler did not conclusively state that the 2007 IQ Scores
were valid - he only noted that "the intratest scatter is minimal and suggests
the test scores are valid." (R. 366) (emphasis added). Unlike Markle, and
as noted by the ALJ, Dr. Wheeler immediately qualified his statement about
the "suggestion" of validity with a caveat that the results may have
"understated the claimant's true intellectual potential." (R. 493). In
concluding that the performance score of 70 was invalid, the ALJ relied on
the fact that "the repeat IQ testing done by [Dr. Wheeler] in February 2011
b [ore] the same caution" regarding the questionable validity of the scores.
(R. 493). Indeed, in Plaintiff's 2011 IQ testing, Dr. Wheeler actually
concluded that "the validity of the test scores may be suspect as patient
appeared to invest little of himself in the testing and had a tendency to
respond with 'don't' know' . . . 'cant or don't know how' . . . . " (R. 493)
(emphasis added) . The ALJ also relied on the fact that Dr, Wayne, Plaintiff's
treating psychiatrist at Mon-Yough Community Center, deferred diagnosis of
any "Axis II" disorder (the axis designated for intellectual deficits) and
did not even diagnose Plaintiff with borderline intellectual functioning.
See (R. 493). In fact, the ALJ explicitly stated that he was rejecting the
IQ scores" [b] ased on the treating source's decision not to make a diagnosis
of mental retardation (or the related disorder, borderline intellectual
functioning), together with the reservations that Dr. Wheeler had regarding
the validity of the claimant's scores . . ,," (R. 493), He also noted that
Plaintiff had "completed high school and had been mainstreamed in such
challenging classes as biology and history, courses that a mentally
challenged person would not typically attempt." (R. 494) . The ALJ also noted
that the "Social Security Administration did not include mental retardation
in among its diagnoses on the determination of disability dated July 22,
2009 in the new claim file." (R. 493).
Plaintiff's reliance on Markle therefore is misplaced, as it is clear
that the ALJ rejected the score by relying heavily on the medical evidence,
and not solely on Plaintiff's activities of daily living. Furthermore, the
ALJ's decision to reject the score was not based on his own observations
and speculative inferences drawn from the record but rather was grounded
in Dr. Wheeler's own reservations about the validity of the scores reported
in his own testing as well as Dr. Wayne's reservations about diagnosing an
intellectual disorder. Compare Markle, 324 F.3d at 187. The ALJ concluded
that it appeared that Plaintiff "attempted to manipulate his test scores
in order to present himself as more seriously impaired than he actually is"
and that his "poor effort at multiple consultative [] exams can easily be
explained in light of his desire to remain on supplemental security income."
(R. 493, 495). The Court finds that substantial record evidence supports
this conclusion as well as the finding that Plaintiff does not meet Listing
12.05C.
Turning to the second issue, the Court finds that Plaintiff waived his
argument with respect to the ALJ's RFC determination because he failed to

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se this specific error with the district court that first reviewed the
ALJ's determination and remanded the case for further evaluation of the
Listing issue. Indeed, arguments that are not raised before the district
court are deemed waived on appeal. See Maddaloni v. Comm'r of Soc. Sec.,
340 Fed. Appx. 800 n. 1 (3d Cir. 2009); Money v. Barnhart, 91 Fed. Appx.
210, 214 (3d Cir. 2004) (" [The plaintiff] apparently did not raise the first
issue regarding the error in step four to the district court, and it is
therefore waived."). Plaintiff's argument that the ALJ' s RFC finding failed
to account adequately for his intellectual limitations in reading, writing,
and math is a distinct and new complaint of legal error that was not raised
and argued before Judge McVerry in the
ial appeal from the ALJ's 2009
determination. See PI.'s Brief at CA 09-707 (Doc. No.9 at 25-31). Although
Plaintiff did raise an RFC argument in his f
appeal, that argument related
to whether the RFC finding properly accounted for limitations in pace,
handling work stress and simple decision-making. Id. at 28-39). To be sure,
the ALJ's RFC assessment in his 2009 determination was similar to the one
in his 2011 decision and it also did not include any intellectual limitations
addressing Plaintiff's deficiencies in reading, writing, and math. See CA
12-690 (Doc. No.6 at 22). Thus, any failure on the part of the ALJ to account
for Plaintiff's intellectual limitations was an issue that was identifiable
during the first appeal and it was neither raised with the district court,
nor addressed in the court's Memorandum Opinion ("Opinion"). See Opinion
at CA 09-707 (Doc. No. 14 at 19-20). Though the court did find error with
the ALJ' s RFC finding, that finding was based on the ALJ' s failure "to properly
consider Plaintiff's IQ scores in conjunction with Dr. Wheeler's other
observations and reconcile the significance of Plaintiff's performance IQ
score and previous IQ scores with his intellectual deficits." (Id.). The
court's Opinion did not squarely address the issue of whether the RFC was
deficient because of any failure to incorporate limitations for reading,
writing, and math. In light of the fact that the district court sits as an
appellate court in its review of social security appeals, and not as a
fact-finder, it sees no practical difference between the procedural posture
of this case and the scenario where a circuit court cannot evaluate the merits
of an argument because it was not raised with the district court who evaluated
the matter before it. Indeed, in this particular case, this Court is the
second district court to conduct appellate review of this claim and
Plaintiff's failure to raise this issue with Judge McVerry in his first appeal
renders it waived.
The Court does not find that any "manifest injustice" will result from
its decision to not entertain the merits of the RFC claim. See Altman v.
Altman, 653 F.2d 755, 758 (3d Cir. 1981). The Court finds that it would be
to raise an argument now for the first time when it could have
been raised and resolved through the first appeal, and, further finds it
unfair to allow Plaintiff a second bite at the apple merely because he had
the benefit of a remand. Indeed, it would be a different matter if the issue
of whether the RFC properly accounted for
iff's intellectual deficits
had surfaced for the first time on this second appeal, but such is not the
case. In any event, the ALJ's focus on remand was "limited to the question
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Therefore, IT IS HEREBY ORDERED that plaintiff's Motion for
Summary Judgment (document No. 13) is DENIED and defendant's Motion
for Summary Judgment (document No. 15) is GRANTED.

s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record

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raised by the Court, namely, whether the evidence adduced in connection with
a subsequent successful application for supplemental security income compels
a finding that the claimant's childhood disability did not cease." (R. 491) .
The ALJ had no basis to reconsider Plaintiff's RFC, particularly in relation
to issues not raised before Judge McVerry. Regardless, the ALJ explicitly
considered these intellectual limitations, finding that Plaintiff "has
limited spelling, reading, and math skills," but that he was "able to complete
simple tasks" despite his learning difficulties. (R. 21). It is clear that
the entire focus of this case has been on whether Plaintiff meets the listing
for mental retardation and the Court is satisfied that the ALJ adequately
explained his basis for finding that he did not. The Court thus finds that
the ALJ' s determination of non-disability enjoys the support of substantial
record evidence.

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