United States District Court, E.D. Arkansas
ORDER AFFIRMING THE COMMISSIONER
J. THOMAS RAY, Magistrate Judge.
Amanda Jones seeks judicial review of the denial of her application for disability insurance benefits (DIB) and supplemental security income (SSI) benefits. Jones last worked in 2005 as a farm helper. Jones applied for DIB and SSI on October 26, 2009, with an alleged onset date of May 1, 2000.,  Jones's date last insured (DLI) is June 30, 2007. Jones bases disability on learning disability and depression, and alleges no physical impairments.
The Commissioner's decision. The Commissioner's ALJ determined that Jones engaged in substantial gainful activity during the period from the alleged onset date to the date last insured, specifically in the years 2004 and 2005 when Jones worked as a farm helper. Jones had no medically determinable impairment prior to June 30, 2007.
After June 30, 2007, evidence established that Jones has severe impairments - depression and borderline intellectual functioning. The ALJ found that none of Jones's severe impairments meet the listings,  and she can perform the full range of work at all exertional levels but with the following non-exertional limitations: interpersonal contact is incidental to work performed; complexity of tasks is learned and performed by rote, with few variables and little judgment; and supervision required is simple, direct and concrete. The ALJ held that Jones can perform past relevant work as a farm helper. In the alternative, the ALJ held that Jones can perform the positions of house cleaner and motel maid, positions identified by the vocational expert (VE) as available in the local, regional and national economies. Jones's application was denied.
After the Commissioner's Appeals Council denied a request for review, the ALJ's decision became a final decision for judicial review. Jones filed this case to challenge the decision. In reviewing the decision, the Court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.
Jones's allegations. Jones maintains that the decision of the ALJ is not supported by substantial evidence because (1) the record does not support the ALJ's determination that Jones's borderline intellectual functioning was not an impairment prior to the DLI; (2) the record does not support the ALJ's RFC determination; and (3) the ALJ did not include borderline intellectual functioning in the hypothetical posed to the VE. These arguments are not persuasive. The ALJ's decision is supported by substantial evidence and no legal error occurred.
Substantial evidence is "less than a preponderance but... enough that a reasonable mind would find it adequate to support the conclusion." For substantial evidence to exist in this case, a reasonable mind must accept the evidence as adequate to support the ALJ's denial of benefits
Impairment prior to date last insured. Jones maintains that the ALJ erred in the determination that there was no medically determinable impairment, specifically borderline intellectual functioning, prior to the date last insured, June 30, 2007. According to Jones, borderline intellectual functioning is a lifelong impairment. Therefore, even absent medical records supporting a borderline intellectual functioning diagnosis prior to June 30, 2007, the impairment existed.
For support Jones cites to cases from the Fourth and Seventh circuits holding that mental retardation is a lifelong impairment,  and that IQs determined subsequent to the insured period can and should be assumed to be the same during the insured period. Indeed, the Eighth Circuit has cited to these cases, stating "[A] person's IQ is presumed to remain stable over time in the absence of any evidence of a change in claimant's intellectual functioning."
Even if the ALJ should have assessed "borderline intellectual functioning" as one of Jones's Step 2 "severe" impairments for the time period prior to June 30, 2007, the issue is ultimately moot. In his decision, the ALJ documented his application of the psychiatric review technique and assessed Jones with mental limitations in her RFC. The ALJ included those limitations, as well as "borderline intellectual functioning, " in a hypothetical question to the VE. For the reasons explained below, the ALJ's mental RFC assessment is supported by substantial evidence and captured the consequences of her mental limitations. Under these circumstances, the ALJ's failure to find that "borderline intellectual functioning" was a "severe" impairment prior to June 30, 2007 does not warrant reversal.
RFC determination. According to Jones, the ALJ's RFC determination is not supported by the record. Jones maintains that the additional limitations of "only simple instructions and simple tasks" should have been included. The ALJ's RFC determination is supported by substantial evidence.
In making the RFC determination, the ALJ gave substantial weight to the consultative psychological evaluation completed by Cara Kriehn De Roeck, LPE-I on December 21, 2009. Jones's full scale score on the Wechsler Adult Intelligence Scale - IV was 72. This indicates that Jones's overall intellectual functioning is within the borderline deficient range. However, during the evaluation, De Roeck noted that Jones was "attentive, " "stayed on task, " "able to understand instructions, " and "did all that was asked of her." Jones "remained focused and diligent to the task at hand." De Roeck found that "[t]here do not appear to be significant cognitive limitations that would impede upon [Jones's] overall ability to carry out activities of daily living." Further, "she has a number of functional skills that could be applied to a work place setting." During the evaluation Jones's "attention and concentration were good." Additionally she was able to "communicate effectively with the examiner" and "complete many tasks given extra time." Although she was a "moderately slow worker, " she was "persistent." There was no evidence of mental retardation.
The ALJ gave some weight to the opinions of the state agency non-examining physicians, Drs. Kay Cogbill and Susan Schaefer. In the January 6, 2010, Mental Residual Functional Capacity Assessment, Dr. Cogbill found that the medical evidence of record supports a diagnosis of depression nos and borderline intellectual functioning. Dr. Cogbill concluded that Jones "is able to perform work where interpersonal contact is incidental to work performed, e.g. assembly work; complexity of tasks is learned and performed by rote, few variables, little judgment....",  In her May 17, 2010, Case Analysis, Dr. Schaefer reviewed all the evidence and confirmed Dr. Cogbill's January 6, 2010, evaluation.
Although Jones was also evaluated by Dr. Sam Hester,  the ALJ did not give controlling weight to Dr. Hester's opinion because it was not supported by the weight of substantial evidence and had internal inconsistencies. For example, although Dr. Hester noted that he "would be surprised if [Jones] does not test out in the mild retardation range, " he ...