Clay v. Barnhart

• Decision Date: 09 August 2005
• Docket Number: No. 04-3527.,04-3527.
• Citation: 417 F.3d 922
• Parties: Evelyn CLAY, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

417 F.3d 922

Evelyn CLAY, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.

No. 04-3527.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2005.

Filed: August 9, 2005.

E. Gregory Wallace, argued, Buies Creek, North Carolina (Anthony W. Bartels, Jonesboro, Arkansas, on the brief), for appellant.

Dianne Mullins Pryor, argued, Dallas, Texas (James D. Sides, Dallas, Texas, on the brief), for appellee.

Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

The district court¹ affirmed the Commissioner's denial of Ms. Clay's claim for social security disability benefits. On appeal, Ms. Clay argues that her physical and mental impairments, taken together, meet Listing 12.05(C) for mental retardation. See 20 C.F.R. Pt. 404, Subpt. P., App. 1 (2001). She argues in the alternative that the administrative law judge ("ALJ") erred when he found that she could perform available jobs. We affirm.

I.

Ms. Clay applied for social security disability benefits on March 31, 1992, alleging disability due to pain and limited mobility in her left knee and right arm. She also alleged poor hearing and a humming in her ear. The present appeal follows her fifth administrative hearing on the 1992 application. The first four hearings on her application resulted in two remand orders from the Appeals Council and two remand orders from the district court. During the protracted pendency of her application, she was subjected to repeated physical and mental examinations. Accordingly, in her latest hearing, on September 24, 2001, extensive evidence was available. The record before us includes information from multiple hearings as well as a large, cumulative body of medical evidence.

Her medical history, prior to her application, included surgery in the late 1970's due to an infection in her right ear; a gunshot wound and related surgery on her right arm in the early 1980's; and a 1986 left knee fracture followed by surgery. She has a plate and pin in her left knee. She claims to have re-injured her knee in 1989. Her current complaints of left knee, right arm, and right ear defects and/or pain are all claimed as residual effects of these prior events. She claims a disability onset date of sometime in the "1970's."

Ms. Clay did not initially claim mental retardation as a source of disability, and the record contains no reference to IQ testing or mental retardation before the date of her application for benefits. She dropped out of school in the ninth grade and received poor grades prior to that time. She claims that she was seen in 1975 by a psychiatrist in Blytheville, Arkansas, for problems related to the fact that she would "fly off the handle." There is no suggestion that this earlier visit involved evaluation for, or diagnosis of, mental retardation.

On May 14, 1992, a consultative physician, Dr. James P. Russell, examined Ms. Clay. He noted that she reported that her left knee swelled occasionally, and that she had pain from the prior knee fracture and gunshot wound to the arm, but that she did not have intermittent pain caused by walking or standing. He reported that she could hear normal conversations. An audiogram showed that she had moderately severe hearing loss in her right ear and moderate to mild hearing loss in her left ear. She exhibited normal ranges of motion in all joints other than her left knee, which was limited to 90 degrees compared to a normal range of motion of 135 degrees. He noted that this restricted range partially limited her ability to squat. He also noted that she could hold a pen and write and grip objects with her hands and that she denied having any mood related disorders or hallucinations. He concluded, "This lady could do work activities such as sitting, standing would be compromised by her left knee, walking would be compromised, carrying/handling objects would be compromised. She can hear; although, that is compromised as described above."

On October 31, 1992, she was treated and released at an emergency room for a crack cocaine overdose. This appears to have been an isolated incident as the record does not support an inference that she was a habitual user or addict. The emergency room doctor recommended that she enter a treatment program. She did not enter a treatment program.

On December 18, 1992, a consultative psychiatrist, Dr. Crupie, examined Ms. Clay at the request of the ALJ. The ALJ ordered the exam because Ms. Clay had claimed that she was seeing and hearing things. Dr. Crupie concluded that Ms. Clay suffered from no psychiatric illness or disorder and that the things she saw and heard were most likely night terrors or dreams. He set forth a clinical estimate that her IQ was eighty. He did not claim to have conducted a physical examination, but reported that she claimed pain as her reason for not being able to work. In his report, under "diagnosis," he wrote "chronic pain syndrome involving left knee, right shoulder and upper arm." He also noted, "I feel that this patient is describing her situation and condition honestly. I do not think that she is consciously exaggerating or malingering." He rated her as unlimited/very good or good in all categories of mental or personality-related job skills other than "understand, remember and carry out complex job instructions" and "demonstrate reliability," for which he rated her as "fair" and "poor or none," respectively.

In June 1993, Ms. Clay's attorney sent her to another consultative psychiatrist for evaluation, Dr. Justin H. Adler. Dr. Adler noted Ms. Clay's physical condition, stating that she walked without difficulty, without limping, and without the aid of a supporting device. He also noted that she claimed that she occasionally took Tylenol for pain, but that she was not taking any prescription pain medication. Her chief complaint was bad nerves. Dr. Adler did not offer an opinion as to whether Ms. Clay exaggerated her mental infirmities. He diagnosed her as having "Conversion Hysterical Disorder manifested by subjective pain sensations in an individual of limited intellectual endowment." He concluded:

I don't believe that Mrs. Clay is consciously exaggerating her discomforts. She actually believes that she has pains as the result of her knee surgery. There is however a lack of commensurate emotional response to her pains which suggests a psycho-pathological dissociative reaction (Hysterical Reaction)[.] Her limited intellect also may play a contributory role here. Her hallucinatory experiences are very vague and more suggestively due to her limited mentality also, a fact not uncommon in individuals of a lowered socio-economic status. The prognosis for substantial improvement is very doubtful.

On February 10, 1998, a consultative psychologist, Michael Inman, Ph.D., examined Ms. Clay. Dr. Inman stated that Ms. Clay was initially hostile, was resentful throughout her examination, and was "ostensibly complying with the evaluation, though providing minimal effort." He stated that her minimal effort "was best exemplified on IQ testing, on Block Design Subtest, when she would discontinue the task even when considerable time remained." He found that her "[g]eneral fund of information was limited, but consistent with her general full scale IQ . . . [she] was able to successful[ly] perform simple calculations, including addition, subtraction, multiplication and division . . . [and] abstract reasoning was limited and quit[e] concrete, though again considered commensurate with her full scale IQ[.] Judgment and social reasoning were grossly intact."

Dr. Inman administered a Wechsler Adult Intelligence Scale-III test (IQ test) and found Ms. Clay's Verbal, Performance, and Full Scale IQ scores to be 65, 62, and 61, respectively. Although he noted that she exhibited minimal effort and discontinued tasks on the IQ test when there was still time left, he ultimately concluded that, "Present subtests [sic] results are considered a valid indication of Ms. Clay's intellectual abilities, which are within the higher range of mildly mentally retarded."

Dr. Inman administered other tests and determined that, regarding these other tests, Ms. Clay was consciously exaggerating her symptoms to secure benefits. Regarding results from an Minnesota Multiphasic Personality Inventory-2 test ("MMPI-2 test"), Dr. Inman stated, "Ms. Clay responded to the MMPI-2 items in an extremely exaggerated manner. . . . Moreover, she responded in a non-defense manner . . . suggesting that her pattern of excessive symptom checking was for the purpose of falsely claiming psychological problems. . . . One is left, therefore, with the conclusion that current results are from extreme and conscious exaggeration of her symptoms apparently secondary to attempts to secure benefits." He diagnosed Ms. Clay with somatization disorder, dependent personality traits, and chronic pain syndrome involving left knee, right shoulder, and right arm. He stated that malingering remained to be ruled out. He concluded, "There is considerable evidence that her responses are extremely exaggerated, based on objective evidence of an extremely high F score on her MMPI-2 as well as my own subjective impressions throughout the evaluation. My clinical impression was that Ms. Clay was probably malingering though this is difficult to assess." He specifically noted, however, that "[d]espite Ms. Clay's extreme exaggeration of her physical symptoms, her intellectual abilities nevertheless fall within the mildly mentally retarded range."

On September 5, 2001, another consultative psychologist, Richard C. Maddock, Ph.D., examined Ms. Clay. Dr. Maddock described her as defensive, indifferent, disinterested, and only minimally cooperative. He administered a full battery of psychological tests. He could not score her MMPI-2 test because she skipped many items and "filled out columns on the answer sheet in...