United States District Court, E.D. Arkansas, Jonesboro Division
Rosa Jane McKellar (“McKellar”), in her appeal of
the final decision of the Commissioner of the Social Security
Administration (defendant “Colvin”) to deny her
claim for supplemental security income (SSI), contends the
Administrative Law Judge (“ALJ”) failed to
properly develop the record and failed to consider her
impaired intellectual functioning and whether she met Listing
12.05C. The parties have ably summarized the medical records
and the testimony given at the administrative hearing
conducted on July 24, 2014. (Tr. 59-80). The Court has
carefully reviewed the record to determine whether there is
substantial evidence in the administrative record to support
Colvin’s decision. 42 U.S.C. § 405(g). The
relevant period for disability purposes is from the amended
onset date of December 4, 2012, through August 28, 2014, the
date on which the ALJ issued his decision.
administrative hearing, McKellar testified she was 46 years
old, weighed 224 pounds, and had a seventh grade education in
special education classes before leaving school due to her
pregnancy. She was married, but separated, and has five
children. She indicated she lived with her sister and cared
for three dogs. She possessed a driver’s license but
did not own a car. She stated she has arthritis in both
knees, significant hip pain, and anxiety and panic attacks.
She uses a cane, which was prescribed for her, and cannot
run, jump, lift, carry, push, or pull, according to McKellar.
She is able to tend to daily hygiene needs, although she said
she could not shower and instead took baths. She indicated
she smokes a half a pack of cigarettes daily. A vocational
expert testified. When asked to assume a worker of
McKellar’s age and educational level, with the ability
to perform light work with numerous other
limitations, the expert identified the jobs of silver
wrapper and assembler as examples of work which such a person
could perform. When the hypothetical question was altered to
assume the worker could only perform sedentary work, the
expert testified such a person could perform the jobs of
jewelry preparer and document preparer. (Tr. 59-80).
to Properly Develop the Record:
faults the ALJ for failing to consider if she met Listing
12.05C for intellectual disability. She argues that the
record shows the possibility of satisfying this Listing and
the ALJ should have explored this possibility. In particular,
she urges the ALJ should have considered the 2009 findings of
Dr. Spellmann (“Spellmann”), who conducted a
mental diagnostic evaluation and intellectual assessment.
(Tr. 336-338). This failure by the ALJ necessitates a remand,
according to McKellar. This argument is without merit, for
the following reasons.
application for disability benefits alleged she was disabled
due to knee problems, lower back pain, and bad nerves. (Tr.
276). She did not allege disability due to intellectual
was represented by competent counsel at the administrative
hearing. The record also shows McKellar had pursued an
earlier effort for benefits, and she was also represented by
counsel in that effort. (Transcript of earlier hearing found
at 85-117). As in this case, McKellar did not allege
disability in the earlier case due to intellectual
concedes that she “did not press her intellectual
disability at the hearing.” Docket entry no. 11, page
14. Thus, she urges error on the part of the ALJ in not
developing the record on an issue she was not advancing. This
is too great a burden to place on an ALJ when a plaintiff is
represented by counsel. At the close of the hearing, the ALJ
inquired of counsel if he intended to offer any additional
evidence, and counsel responded no. In addition, McKellar and
counsel were apprised at that time that the ALJ deemed the
record adequate and the case ready for decision, stating,
“I don’t get the impression there are any medical
records we don’t have. I don’t intend to send
this lady out for any additional testing or evaluation so
let’s go ahead and close this hearing.” (Tr. 78).
The hearing concluded without objection.
the parties agree that the ALJ has a duty to fully and fairly
develop the record, even when the plaintiff is represented by
counsel, we find no error in this instance. The 2009 report
of Spellmann did not trigger an obligation on the ALJ to seek
further evidence, particularly when McKellar was not arguing
an intellectual impairment caused her to be disabled.
12.05C for Mental Retardation:
contends the ALJ should have considered whether she met
Listing 12.05C. To meet Listing 12.05C, 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 at 898 -899.
See also Cheatum v. Astrue, 388 Fed.Appx. 574
(8th Cir. 2010) (the introductory language of
Listing 12.05 requires a plaintiff to demonstrate she
suffered deficits in adaptive functioning).
Spellmann’s findings were given some weight, McKellar
did not show she met the requirements of the Listing.
Spellmann tested McKellar, resulting in the following scores:
verbal IQ of 73; performance IQ of 73; and full scale IQ of
70. (Tr. 337). As a result, McKellar falls within the
numerical requirement to meet Listing 12.05C (IQ of 60-70).
McKellar also satisfies the third requirement, as she has
medically demonstrated osteoarthritis of her knees. (Tr. 532,
534) (“moderate” osteoarthritis in right knee,
and “moderate to severe” osteoarthritis in left
knee diagnosed by radiologist in March 2014). However,
McKellar fails to satisfy the second prong of the Listing, as
she does not show she had deficits in adaptive functioning
that initially manifested themselves before the age of 22.
Indeed, Spellmann’s findings support the ALJ’s
conclusion in at least two critical ways. First, Spellmann
did not diagnose McKellar as mentally retarded. Rather, he
found her to have borderline intelligence. Second, and more
important, Spellmann offered numerous findings on the effect
of McKellar’s mental impairments on her adaptive
functioning. According to Spellmann, McKellar’s mental
impairments did not interfere with her day to day adaptive
functioning, she could communicate and interact in a socially
adequate manner, she could communicate intelligibly and
effectively, she could cope with the cognitive demands of
work like tasks, she could sustain concentration and
persistence in completing tasks, she could complete tasks
within an acceptable timeframe, and she could manage funds
without assistance. (Tr. 337-338).
medical evidence during the relevant time period is
consistent with Spellmann’s general diagnosis and his
findings on McKellar’s adaptive functioning. For
example, when McKellar was seen at Mid-South Health Systems
at the outset of the relevant period, her intelligence was
estimated to be “average to low-average.” (Tr.
469). McKellar was later seen at Families, Inc., from January
through June 2016. On eleven occasions, she was evaluated and
diagnosed under a framework with five areas of concern. For
example, one of the areas was Axis I, Clinical Disorders,
where McKellar was consistently found to suffer from
post-traumatic stress disorder. The second area, Axis II, is
described as “Personality Disorders and Mental
Retardation.” On all eleven occasions there was
“no diagnosis on Axis II” by the staff at
Families, Inc. (Tr. 571, 575, 580, 583, 585, 593, 596, 599,
602, 603, & 606).
summary, McKellar received no diagnosis of mental
retardation, either before or during the relevant period.
More importantly, she does not demonstrate adaptive
functioning deficits to the point of mental retardation.
There is no merit to the claim that she met Listing 12.05C.
And, as previously addressed, the ALJ did not err in failing
to develop the record to further consider this possibility.
ultimate decision of Colvin was supported by substantial
evidence. We are mindful that the Court’s task is not
to review the record and arrive at an independent decision,
nor is it to reverse if we find some evidence to support a
different conclusion. The test is whether substantial
evidence supports the ALJ’s decision. See, ...